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a\ 



A REPORT 



OF 



THITTRIAIa 



OF 



8F THE NAVY OF THE UNITED STATER, 

BEFORE A GEJS'EKJiL COURT MdliTIJL, 

HELD AT WASHINGTON, IN JULY, 1825- 



BY BOB^EUT BEALE, ATTORNEY AT LAW. 



C'est le Clime ctuifaitla lionte & non pa»» I'cchafaud.— OW'- 



TO WHICH IS ADDED, 

A REVIEW OF THE COURT'S DECISION. 



W.^SHmGTON CITY. 

1835. 



IV, 

pl'biper Departmeot, after the publication of the sentence, that 
sucn access was deemed inadmissible, till tlie whole record could 
be printed at large. Knowing that this publication must bt ex- 
tremely voluminous ; — that the essential matter of it must be 
buried under a vast heap of documents, appended to it as neces^ 
sary to the fcirmal completion of a record, properly so called; 
but the essential matter of many of which, in relation to any 
real point in issue, was comprised in a nutshell : that, at any rate, 
a mere undigested record was in no case a substitute for a re- 
port ; and in this particular case, that there were many circum- 
stances necessary to a full report, that formed no part of a re- 
cord ; and above all that it was utterly impossible to comprehend 
with any sort of accuracy or precision, the bearing or application 
of the evidence itself, from the mere record, without infinitely 
more labour a"nd research than any reader could be supposed wil- 
ling *n nnrlertake, and which none but a professional one could 
execute; (a fact more particularly exemplified in the list of in- 
accuracies alleged agam&t Oom. p'g pamphlet,— but applying, 
witli more or less force, to the whole caso ;) ^^^ ^h^t the contem- 
plated publication of the entire record would, in all probability, 
from its volume, be postponed to an inconvenient period ; — it was 
determined to set about the preparation of the ensuing report From 
such materials as were in the hands of the reporter, and as were 
still accessible to him. The unexpected necessity of compiling 
the report from these materials', very considerably enhanced the 
labor which it would have cost, if reference could have been had 
to the official record : and has also left some chasms which it has 
been impossible fully to supply from the materials on hand. 
These, as will be evident from those parts of the report where 
they appear, are of no importance to the main issue ; but only 
as matter of incidental illustration on collateral topics. Such of 
them as it shall appear proper to supply, with that view, are in- 
tended for a supplement, when the materials can be procured. 
Being in possession of extensive notes and copies of the proceed- 
ings taken during the trial ; and of duplicates of all the mate- 
rial documents ; — having been furnished by the counsel with all 
his notes ano vongli draughts, as well of the prorpeilings as of 
the arguments; and assisted by him in the arrangement of the 
Sftne from such notes and from recollection, the following report 
is ottered to the public as a full aitd accurate report of the trial 
in all essentials. 

In making up the journal of proceedings, reference has been 
had to the reporter's notes and copies of the official journal kept 
of the same ; — the order of which has be<>n followed ; — but with 
an occasional enlargement and change of forxn, where such en- 
largement or change was neces^iary to the purposes of a full re- 
port. The evidence, and the decisions of the court are given 
verbatim, as recorded. The papers necessary to illustrate the 
progress of the court's daily proceedings, which seem to be omit- 
ted in the bddy of the record-journal and referred to as exhib- 
its, are here introduced into the body of the proceedings. — The 
argumentative parts, proceeding from the accused, are compiled 



from tough draughts or extensive notes, and are stated with all the 
fu.lness and accuracy necessary to such documents. — The refer- 
ences, in the body of the minutes, to th? docinnents introduced 
in the course of the trial are, in some instances, confused and 
evidently inaccurate : which vk'as particularly observed in the 
references, in the journal of proceedings for the 28th and SOfh 
July, to the documents introduced subsequent to Mr. Monroe's 
deposition. But having retained possession of duplicates of the 
entire mass of documents it is believed with entire conidence, 
that we have been able very effectually to correct any errors of 
reference, by selecting from tKe mass such of the documents as 
were actually used and intended to be referred to; without any 
material omission. 

Washington, Nov- 10, 1825. 



1 ABLE OF CONTENTS. 



[Note. I» the following table the references to the number of the paK«^ 
distinguished bv an asterisk, thus 1*. refer to that part of the volume subse- 
quent to page 244. In consequence of the latter part of the volume con- 
sisting of the defence, S;c. being ready for the press, before other matter ui- 
tended to precede it, that was put to press first, for the saiie of expedition ; and 
the pages numbered in a new series in order to admit it, without contusion, 
iTi_ its proper place in the volume.] 



Page. 
1-72 



I. Journal of proceedings from Thursday, July 7, to Sat- 
urday', August 6. 

{Particular contents.) 

1. Exceptions to tlie U|jpo;ntm«-nt of the judge advo- 

cate, and proceedings and remarks thereupon, 1 o 

2. Charges and specifications, ... ' 

5. Variances between original and copy of the same, 

and plea under protest, . . . ^ — ^^ 

4. Examination of captain Dallas, . . • \^ 

.5. Do. hcut. Flatt, .... 15,17,25,35 

6. Do. lieut. H. Kitchie, . . , 27, 34 

7. Do. lleut. Crabh, .... 32,33 

8. Do. lieut. Haiton, .... 34 

9. Do. Dr.Judson, .... 35 

10. Objections. to 2d charge, &c. stated, - 3b 

11. Reference of the same to the attorney -general, - 38-9 

12. Com. Porter's reason for waiving iiis prchminaiy 

exceptions, with the court's decision thereon, and 

remarks, ... - 39 — 44 

13. Froceediiigs relative to authentication of papers 

from the Navy Department, - - 44, 48 

14. Call of the judge ad\ ocate upon com. Porter to 

protluce ins private correspondence with Mr. 

Monroe, - - - - 44 6 

15. Order for taking Mr. Mqnroe's deposition and re- 

marks thereon, - . - 46 

16. Call upon the judge allocate to explain the object 

of the same, ... 47 

17. Further proceedings concerning the same to tl\e 

time of its being produced and read, - 49, 50, 64 

18. Examination of John JJoyle, - - 49 

19. Do. W. W. Scaton, - - - 51, 57-8 
vJO Do. Peter Force, - - !'>2 
til. Do. J. Simpson, ... 53 
.'J2. Do. lieut. J. T. Uitchie, - - 55 
2.J. Do. Martin King, ... 56 
24. Do. G. Harrison, ... 62, 63 
25 Proceedings relative to the proposed examination 

of Mr. Seaton by the accused, and remarks there- 
on, - - - - 57, 60,67 
^6. Mr. Seaton's IctteJ-, - - - 61 
~7. Application to have the Secretary of the Navy ex- 
amined, Stc. rejection of the same and remarks, ike. 60-1 
?8. Anonymous note in tlie National Journal, mentioned 

n com. Portei-'s letter to the Secretary, June 14, 65 



VM. 



Pagje. 



£9. Com. Porter's objections to documents offered by 

the judge advDcate, - . - 67 

"0. These objections supported by counsel, - 69 

31. Decision thereon, and reniuiks, . - 74. 

32. Statement concerning the examination of Mr. Boyle 

and the refusal to communicate the documents 
autlienticated by him, - - - 71 

33. Application to the court to receive certain documents 

offered by the accused ; and the decision thereon, 72 

H. Documentary evidence to 1st charge, - - 74 — 102 

{Parllculw contents.) 
No. 1. Original instructions, of Secretarj' Thompson to 

Com. Porter, Feb. 1, 1823, - - 71 

2. Com. Porter's report of the affair at Foxardo, 

November 15, 1824, - - T7 

3. Letter of recal, December 27, 1824, - 78 

4. Kesohition of Congress, Dec. 27,1824, J*8 

5. President's message and Secretary's report, 

Dec. 28, 1824, , - - - ?'9 

6. 7, 8. E.xtracts from other mes^ygcs and reports, 80-1 
9, lU, 11. Reports of com. Porter, capt. Cassin, and 

lieut. Ke.iniey of cruises, &c. - - 82-8 

Correspondence with governors of Cuba and 

Poito Hico, - - - - 88 

12. Rejected documents, &c. &.c. - 89—101 

Remarks upon tlie rejection of the same by the 

court of inquiry, ... 102 

16. Com. Porter to tl'ie Alcalde of Foxardo, - 101 

WI. Documents under ch. 2. specification 1st, - 108 — 119 

(Particular contents*) 
No. 1 to No. 14. Correspondence between com. Porter, 
tlic Secret- ry and President, from Dec. 27, 1824, to 
June 14, 182.i, - - - 74—116 

No. 1j to No. 17. Explanatory documents, • - 118, 119 

iV. KN'IDKNCE under specification 2d, - - 119 — 125 

V. Do. \inder specification 3d, - . - 125 — 141 

(^Particular conteirts.) 

1. PrelliTlinaiy explanations and references to evidence, 125 — 132 

2. List of VAUIANCHS noted by the judge advocate, &c. 132—141 
Vr. F.VIDKN'CE under specification 4t)*, - - ^'^\~^^'t: 

\'1L Do. under specification 5th, 

VIIL Evidence at large, not referable te any of tlie charges 
or specifications, 

{Particular contents.) 

1. Recapitulation of the circumstaness attending the 

introduction of H r. Monroe's deposition, 155-6 

2. 'Che jiKlge advocate's interrogatories, - 156 

3. Litters therein nferred to, - - 157 — ICO 

4. Com. Pinter's protest and interrogatories, - ^^~A 

5. Deposition, - - - 1^ 

6. U.capitiilation of the several new charges supposed 

to be implied by tlie production of the said depo- 
sition, ... - IGo 

7. Analysis of the several documents produced to re- 

pel these charges, 5»-i'a//>/i, • - ICi— 181 

TK. Exceptions to 2d charge, &.C. 

Recapitulation of the circumstances attending the in- 

i.cifTo'^itiuH «f the same, - - ^^~ 



153—5 
155—181 



VUl. 



I^age 
Heads of argument and authorities in support olthe 

same, - • - " " ,05 
The judge advocate's answer, - . , • ' , j 
Remarks, 8cc. embracing what had been said in the de- 

fence, in reply to the judge advocate's argument, ^ii* 

X. DEFENr.E.— ag'ainst charge 1st, - ' c.t ' -^ ^° 

General remarks on charge 2d, and the conduct ot the 26*— 33* 

prosecution, - - ." ' ^ „^^ 

Reasons for adhering to the original exceptions, ot* 1r- 

The several specifications considered seriatim, • -if — *»» 
XI Proceedings of the court from the 9th to tlie 13th Au- 
gust, including censures upon the r/e/encc and sentence 

of condemnation, - - " ^„. 

XII. Review of the same, - ' * *''*^ 



Owing to the great hurry in preparing the copy foi- the press, 
as wanted, the reporter is obliged to make the following 

ERRATA. 

Page 10, 2d line of last paragi-aph bwt one. For rerm'erf read waived. 

Pare 36, 1. 15. For Whonn read Ufilhtrrn. 

" 1. 44, or 1. 2 of the 4th objection. For Gravaven read Qrammen. 

Pag« 42. Note. 1. 4. For cxpeugaiorious read expurgatoritis. 

id. 1. 8. For color and glossy read calm and glassy. 

id. 1. 12. Instead of ''for the weakness" read "by the neatness?' 

Page 46. Note. 1. 37. For « of interrogatories," read «' on interrogatories." 
id. 1. 38. For "to present" read " to 6e present." 

Page 47, same note, last paragraph, 1. 4. For « why it should," read « why 
lilt decision should." , . , 1 , • » 

Page 60. Note. 2d paragraph, line 7. For denial read clerical. 

Page 78, 1. 2. For 1825 read 1824. 

Page 102. Note. 1. 8. For lay read lie. 

Page 103, 1. 16. Dele « on oath." 

id. 1.20. For " infwmal autlienlicAtion" read ** informality in (he 

authentication." 

Page 104, 1. 1. After "provided" deleybr. 

Page 159. Letter, Oct. 21. par. 3, 1. 2. After <• officer," read « of rank 
and experience." 

Page 160. 1. 4 of ilie protest. After " authority," for he read/Ae. 

Page 166. 1. 2 of the number 3. After « return" for has, read had. 

Page 191.1. 6 of the last paragraph. After " disrespectful words," read 
*' and behaviour." 

Page 194. 1. 20 of the last paragraph. For Wc, read He. 

Page 217. 1. of last paragrajih in some of the impressions. For seriously^ 
read summarily. 

Page 31*. last word in last hne but one. For definitely, read definitively. 

Page 57*. beginning of 1. 8. For be here, read inhere. 

Page 55*. 1. 3 of second paragraph in the parenthesis. For however read 
howsoever; and for pnblis/ted, read jihra.sed. 

[Note. The publication of the large impression of this report now struck 
off, and which has been in the press since September, has been delayed very 
much beyond expectation, by imperious circiunstan«es.J 



TRIAL 

OF 

OF THE NAVY OF THE UNITED STATES, 

BEFORE A GENERAL COURT MARTIAL, &c. 



THURSDAY, July 7, 1825. 
The naval court luartial for the trial of comuiodore Porter, 
assembled at the Navy Yard in Washington; and appeared to be 
composed as follows: 

Captain James Barron, President. 

Cfeptain Tliomas Tingey, 
James Biddle, 
Charles G. Ridgeley, 



Robert T. Spence, 
John Downes, 
John D, Henley, 



,y rCaptain Jesse D. Elliot, 
es j James Renshaw, 

I ^ J Thomas Brown, 

r § 1 Charles C. B. Thompsop 



M j Alex. S. Wadsworth'.anf 

S L George W. Rodger*. 



Richard S. Coxe, Judge Mvucate. 

A precept from the Secretary of the Navy was then read ; by 
which a general court martial composed as above, was appointed 
for the trial of Commodore Porter, at the time and plac* afore?- 
said, upon certain charges and specifications, annexed : and Rich- 
ard S. Coxe, esq. was named to officiate as judge advocate. 

The officiating judge advocate then asked commodore Porter, 
whether he had any exceptions to make, against any of the mem- 
bers present ; and if he had any such, to declare the same, b«forC 
the members were sworn. 

Whereupon, commodore Porter addressed the court, as folio wS^ 
"Mr. President, 

Thus called upon to declare my exceptions, if any I have, 
to any of those members of the general court martial, here assem- 
bled, who are to exercise a judicative function in my case, and t» 
have a voice in pronouncing my guilt or innocence, — I do with- 
out hesitation renounce every such exception. Even if it were 
so, that any member of this court should, unknown to me, be af- 
fected by any prejudice or bias, unfavorable to an impartial judg- 
ment in my case, I rely too implicitly on the known character of 
my brethren in arms, to think of scrutinising the motives of any : 
their own breasts are sufficiently informed, by justice and boDor, 
of the proper course to be pursued, in such a case. 

Bat, sir, I do find myself very rolu«tantly impelled, not m«re 



by a iense of the justice due to myself, than by a regard for the 
honor of the service, and for the wliolesome safeguards of military 
jurisprudence, to interpose, at this precise stage of the business, 
some fundamental objections to so much of the essential material 
of this court, as consists in the functions of the judge advocate. 
The grounds of my objections to the gentleman named as judge 
advocate, in the order for con\ening this court, detract nothing 
from the great learning and abilities, for which he is so well 
known ; nor from the general integrity and fairness of his charac- 
ter. That a juror, summoned on a criminal trial before a court 
of ordinary judicature, or a member of a court martial, may be 
challenged, either peremptorily or for cause, without the least 
disparagement of his personal or professional character, is too 
well settled to require a contrary inference to be disclaimed oa 
any occasion. 

My exceptions go, first, to his legal competency and authority 
to assume and exercise the functions assigned him by the Secre- 
tary of the Navy: and, secondly, if he should be found duly ap- 
pointed, then to the temper and bias of his mind in relation to 
this particular cause. 

1. Then, I ask, does he claim to be judge advocate, ex ojficio ; 
or merelv to officiate, as such, under a temporary delegation of 
authority for this particular occasion ? 

If the first, let liis commission be produced, and the question. 
Oil this point, is at once settled. A judge advocate is an officer of 
such importance in every military establishment, whether of the 
land or naval service; — and the due administration of his office so 
vitally aff'ects the most inestimable rights of the officers and men, 
attached to the service, as makes it altogether inconceivable, how 
his appointment should emanate from any less authority, or be 
manifested by any less soleion act, than that of any other officer, 
civil or military, under the government. This brings us directly 
to the authority of the President of the United States, executed 
in the solemn form of a regular commission. Under the constitu- 
tion and laws of the United States, it cannot be pretended that 
the Secretary of the Navy, or any authority less than that of the 
supreme executive, can make such an appointment. 

If, however, it be no judge advocate, ea* officio, who presents 
himself, but merely one, with a temporary delegation of authority 
to act, as such, on this special occasion ; — then, I ask, who is com- 
peJent to such delegation of authority; — and from whom does it 
actually proceed in this instance ? 

No express provision appears to have been made in the naval, 
as there has been in the military establishment, for the appoint- 
ment, either of regular judge advocates, or of persons specially 
deputed to act as such. Yet the existence of the office, and the 
practical exercise of its functions, in both descriptions of persons, 
are recognized in the rules and regulations for the government 
of the navy : which speak of "the judge advocate," as distin- 
guished from the " person officiating as such :" thus implicitly ad- 
mitting an authority, soinewherHf to appoint to the office, or to de- 



legate its functions, in either mode. («) I do not, therefore, 

question the propriety of assigning the functions of judge advo- 
cate, as well in naval as in military courts martial, to any person, 
either regularly appointed to the office, or specially deputed to 
officiate, as such, in a particular trial. Then the only question 
is, how, and by whom may a person be so deputed, to act in the 

f)lace of an official judge advocate to a navat court martial ? The 
aws of the United States being silent on the question, it follows, 
that, vylierever the power may reside, it is, in its nature, strictly 
incidental; and, as such, can be claimed only by that officer, or 
that tribunal, to whose fundamental constitution and inherent 
powers, it bears the nearest affinity and the strongest analojiy. 
Upon these principles, I maintain, that it is altogether foieign to 
the general constitution and power of the Navy Department ;arid 
bears no affinity or analogy to the ordinary functions assigned to 
the head of th^t departuient : but, on the contrary, that it is per- 
fectly consistent, and in strict analogy with the peculiar consti- 
tution and powers of the court-mai'tial itself; and devolves, 
among other incidental and resulting powers, upon that tribunal 
as the appropriate depository of every authority, necessary to the 
order and the authentication of its proceedings. 

Such is the invariable practice of naval courts-martial in Eng- 
land; and it is sustained by the most authoritative precedents in 
our own service. — I refer to one precedent now in my mind ; 
namely, the court of inquiry on captain Hull: and 1 doubt not 
many others are extant. The appointment of its own clerk (an 
office distinctly appertaining to the various functions of judge ad- 
vocate) may, indeed, be assumed as an universal incident to the 
constitution of every deliberative body and judicial tribunal: un- 
less vested by express enactment, in some other department. If 
then the deputation of a person, to officiate as judge advocate in 
this case, proceed from the sole authority of the Secretary of the 
Navy (as I understand is the fact) I except to its competency; 
and maintain that it should be supplied by an appointment from 
this court. 

2. But, if the learned gentleman, named by the Secretary of 
the Navy, should be found, on examination, to be duly authorized, 
in any way, to officiate as judge advocate, I except to him, as 
being actuated, by a manifest bias of prejudice and interest, to 
labour for my conviction ; and to exert the uttermost of his inge- 
nuity, skill and learning, to fix upon me all, or the greater part of 
the charges exhibited against me. Before I state, more particu- 
larly, the facts, upon which this exception proceeds, I beg leave 
to advert, very cursorily, to the qualifications and functions of a 
judge advocate, as defined by the concurring authority of all the 
most approved writers on military jurisprudence, (a) According 

(a) Vid. L. U. S. vol. 3. chap. 187, s. 1, art. 36, p. 357. S. 2, art. 3, p. 359. 
For the military articles of wur, on the same subject, vid. vol. 4. ch. 20, ait. 
69, p. 23. 

fa J 1 M'Arthur (4th Ed. Lon.) ch. 12, p. 279, 291, 441, app. no. 26, 
Judge Bathiirst's opinion. Adye, ^7lh ed. Lon.) P 1, ch. 6, p. 113, 115, 118. 
Macomb, ch. 9, p. 166, 167, 169, 170—1 TyUer, (od ed. Lon.) ch. 10, p. 349- 
363. 



to these autlioilties, lie is the primum mohile, as it has been term- 
ed, of the court: U|)oti lu;n the court depends for an impurtial 
and canditl exposition of the law ; and should expect to lean upon 
his advice, with entire conlidence. Not only is the absence of 
6very sort and degree of prejudice or bias ajrainst the prisoner, 
indispensably required of him; but absolute impartiality, is the 
least favourable state of mind requisite to fulfil the human behests 
of the law, by which his relative duties, towards the prisoner, are 
defined : for it is expected that he rather incline to llie side of 
the prisoner ; and, upon all doubtful questions, decide in his 
favor: that, as the recorder of the evidence and of tlie court's 
proceedings, he be studious to collect and record every circum- 
stance, that may weig;h in favor of the prisoner : nay, in many in- 
stances, that he act as his counsel. This last office, I happen to 
be so fi»rtunately situated, as to be able to dispense with. But 
cases may possibly arise, when it miji;ht be indispensable to the 
cause of justice and humanity: and I am now contending, upon 
this, as upon every other question involved in my approaching 
trial, for principles, which, apart from their practical operation 
upon my particular interests, are important to the dearest inte- 
rests of the service : for principles, in the subversion or contempt 
of which, no officer, or man, in the service, can hold any security, 
for life or honor, infiolate. 

Then, the judge advocate, as acting this essential and promin- 
ent part in the constitution and in the deliberations of a court- 
marttal, i« unquestionably, as fair a subject of challenge, whether 
peremptory, or for cause, as any other member of the court. The 
reason and necessity of the thing are the same: the law cannot be 
ditferent. 

As to the causes of challenge, I might well maintain, upon 
very respectable authority, that I am not bound to assign any; 
but that I am entitled to a peremptory challenge. (6) I shall pro- 
ceed, however, to assign my reasons, openly and candidly ; with 
this preliminary illustration of the principles, by which the suf- 
ficiency of " challenges to the favor," is usually determined: 
namely, that circumstances, which raise ^suspicion, very far short 
of any direct proof of bias or partiality, are deemed sufficient 
cause, either against a juror, in a criminal trial, or against a mem- 
ber of a court-martial : a strict analogy, between the two, being 
preserved in military jurisprudence, (c) 

When the functions and relative duties of a judge advocate 
are considered, 'tis not to be imagined, that any lower standard 
•an be applied to the qualification of <lispassionate, disinterested, 
and impartial judgment in him : if, indeed, the absolute freedom 
of his mind, from every interfering bias and passion, be not sub- 
ject to a still severer fest. 

The facts, upon which my present exceptions are grounded, 
furnish superabundant matter for the application of these wh(»le- 
some and necessary rules. I have direct and certain information, 

i^hj Adve, P. 1. ch. 6, p. 120-3. 

CO Id. F. 2, ch. 3, p. 175. Teller, (3d ed. Lon.) ch. 5, sec. 2, p. 2?2. 
Macomb, ch. 4, s. 2, p. 72. 



that the genf.eman, ilow claiming to officiate as judge advocate, 
has written and publisiied, at least, one anonymous piece, i!i8- 
tinctly asseriing the truth of one of the specifications now exhi- 
bited against me- and so, has pledged his credit in a way utterlj 
incompatible with the requisite impartiality, to fix a charge upon 
me ; uhich, from its nature, may result in a question of veracity 
between himself and me. 

I am further informed, though n(»t upon such direct and cer- 
tain authority, a« in the other instance, but from sources pregnant 
of probability and truth, that he has employed hiuiselfiti writiijg, 
and has quite or nearly prepared for the press, a pampiiiet pro- 
fessing to be a full answer t'> my published defence aguiti>T the 
principal charge, now to be tried : and laboring to establish, by 
facts and reasonings, the conclusion of my guilt. 

Of these facts, 1 doubt not of being able to produce the most 
satisfactory evidence; if the voluntary and candid avowal of ihe 
gentleman him^eifs^^luld not dispense with it. {a) 

Then I would ask, what is left for liim, on this occasion, but t© 
redeem his public pledges, and (o vindic;ile liis nwn preconcei>ed, 
divulged and fixed opinion of my guilt .^ — and how is this to be 
reconciled wuh any of the legitimate tuuctions of a judge advo- 
cate ?" 

Thursday, July 7, 1825." 

The court was then cleared to deliberate on the exceptions so 
made to the officiating judge advocate : and, after some time spent 
in deliberation, with closed doors, commodore l^orter received a 
messagv from the court requesting him to send in the papei con- 
taining his said address; which was done accordingly. When 
the court was opened, the following proceedings and decisions 
were announced by the jndge advocate : 

One of the members of the court proposed the following ques- 
tion : 

Shall the qliestion whether the judge advocate be subject to 
challenge, be referred to the attorney general, through tlie Secre- 
tary of the Na>y ? which was determined in the negative. The 
question was then on motion proposed to the couit — 

Is the judge advocate liable to be challenged by the accused? 

One of the members of the court said that he did not feel him- 
self competent to decide the question with»>ut legal advice ; at 
his request the judge advocate was called upon by the court fur 
his opinion, which he gave as follows : 

•' Commodore Porter having taken an exception to my acting 
as judge advocate of the couit, and the court having intimated a 
wish that I should give my opinion upon the question, wlicther a 
ehallenge, or exception, to the judge advocate may be taken by 

faj Note. — Both facts have been since established in the clearest man- 
ner The publication of the anonymous piece in tlie National Journal, will be 
found proved and admitted in the subsequent proceedings : and the pamphlet 
was advertised for sale, on the day after the sentence of the court was pub- 
lished in thi« case : leaving no doubt iLat the pamphlet had been composed 
and was actually iu tUe pt^S) at tU^ tin^^ tiiese exceptions were taken. 



the accused ? I am of opinion that the appointment of the jiulge 
advocate rests with the government, and that he holds his office 
bv the same uuthoiity wliich appoints the court ; and that, neither 
h;ts the accused a right to make any exception before the court, 
nor lias the court a right to decide upon an^ exceptitm to the judge 
advocate. That no precedent of such challenge having ever been 
made, lias been, or. it is believed, can be produced."* 

Alter reading this opinion, the question was put and decided in 
the negative. 

♦ NoTK. The conclusiveness of this reasoning' is not quite obvious. "That 
the appointment of the judge iidvocate rests with tlie government," that is, 
with llie Executive Government, an J with that only, is the very point maintain- 
ed by the exceptions: but with what department is the (luesUon ? The ex- 
ceptions insist that the regular anpointment to the oHice belongs exclusively 
to the Supreme Executive, not to any Executive Department; and the tem- 
porarj designation of a person to officiate :xs judge advocate, pro hue vice, to 
the court itself; otherwise, to the Supreme Executive, in common with the 
official appointraent: but that, by no possibility, may the Secretary of the Navy 
fultll the ciiaracter, or perform the function of the appointing- power, in either 
instance. 

" That the judge advocate holds his office by the same aulltority which ap- 
points the court," is a mere begging of th« question ; for ilic argument, to be 
answered, proceeris upo'i the actual case of a special designation of a person 
to officiate as judge advocate ; and concludes, that it is among the incidental 
powers of the court itself. But take the ca.ie of a person claiming the official 
stat/on of judge advocate, is it to be imagined, how or why the cotn-t siiouid 
be foreclosed Trom inquiring into the source ov the fact of his appointment; 
and ascertaining wiietiier it proceed from any competent autliority ? Each 
nu'inher of the cour^ acts under an appointment, co-orilinate with every other; 
yet notlimg is more ciearl}' established, both in theory and in practice, than 
fertile court to ex.mune and determine the legality of ifts own constitution 
and appointment, and the competency, legal and moial, of its iiKnibers, col- 
leciively or ir.di\iduHlly. btrange, if it may not examine the authority by 
whicli its own clerk or recorder claims to administer its judicial oath ; to mix 
in its d liberations ; and to conduct and authendcate its proceedings! — Still 
more strange, if, becaus". his appointment oi»^/ii to be co-ordinate witii that of 
the court itself, the court must put up with one that is subordinate, or witiiout 
any lawful authority v.-hutever ! The reasoning which has led the court to 
tliis extraordinary conclusion, confounds, tliroughout, the two distinct and in- 
dejjendent grounds of exception taken by commodore Porter ; the one to the 
legale the other to the j/kwy// competency of the person alleging his autliority 
to officiate as jud_ge advocate. This obvious distinction is no less disregarded 
wlien it is said "that no prtcedent of such a challenge having ever been made, 
has been, or can be produced." Had tliis assertion been made in open court, 
so as to have admitted of an ausv/er before the question was decided, a well 
known, and most authoritative prectdeM would instantly have been referred 
to, ill the case ol' Martin Van Suren, esq. (nov/ a Senator from N. Y.) who was 
appointed a special judge advocate to the general court-martial for the trial 
of Major (ioneral Wilkinson, whose exceptions to the legality and competen- 
cy of the appointment were sustained by the court, and itsdecision acquiesced 
in, both by the gentleman who had received, and by the government which 
had conferred the appointment. For the second ground of commodore Por- 
ter's exct-ption, as "« diiUlenge to the favor" technically so called, no particu- 
lar precedent is cited, or recollected ; it rests upon the reasoning from analo- 
gy, and upon the autliorities by which it is supported in tiie text. 

So much has been said for the sake of the prendriit, in order that future 
courts-niar'ial, before they adopt and confirm one of such dangerous tendency, 
may be invited to weigh the autfwnly of the present decision, by the merits of 
the ex-purtC'reasoning, upon which it Jias apparently proceeded. 



The usual oaths were then ad ministered to the members of the 
court, and to tlie judge advocate, respectively, according to th« 
naval articles of war. 

The judge advocate then read the charges and specifications, as 
follows: 

" Charges and Specijicotions exhibited against David Porter ^ 
Esquire, a Captain in the JSTavy of the Lnited States. 

Charge 1st. Disobeilience of orders, and conduct unbecoming 
an officer. 

Specification. For that he the said David Porter, being in com- 
mand of tlie naval forces of the United States, in the West India 
seas, Gulph of Mexico, &c, did, on or about the fourteenth day of 
November, in the year of our Lord one thousand eight hundred 
and twenty-four, with a part of said naval forces, land on the 
island of Porto Rico, in the dominions of his Catholic Majesty 
the K-ing of Spain, then, and still in amity and at peace with the 
United States, in a forcible and hostile manner, and in militarj 
array, and did then and there commit diver? acts of hostility 
against the subjects and property of the said King of Spain, ia 
contravention of the Constitution of the United States, and of the 
laws of nations, and in violation of the instructions from the go- 
vernment of the United States to him the said David Porter. 

Charge 2d. Insubordinate conduct, and conduct unbecoming 
an officer. 

Specification 1st. For that he the said David Porter did write 
and transmit to the President of the United States, a letter of an 
insubordinate and disrespectful character, to wit: on the seven- 
teenth day of April, in the year of our Lord one thousand eight 
hundred and twenty-five, and did also write and transmit to the 
Secretary of the Navy, at sundry times hereinafter particularly 
mentioned, various letters of an insubordinate and disrespectful 
character, viz. on the thirtieth day of January, the sixteenth day 
of March, the thirteenth day of April, and the fourteenth day of 
June, all in the year of our Lord one thousand eight hundred and 
twenty-five, thereby violating the respect due from every officer 
in the navy to tiie head of the department, impairing the discipline 
of the service, and setting a most dangerous and pernicious ex- 
ample. 

Specification 2d. For that he the said David Porter, after .u 
court of inquiry had been convened, and directed to investigate 
and make report of the facts in relation to the matters embraced 
in the specification of the first charge, and after such court had 
terminated its inquiries and had transmitted its report to the Se- 
cretary of the Navy, and before the Executive had published, or 
authorized the publication uf the proceedings of said court, «lid 
publish, or cause to be published, a pamphU-t purportit^g to cton- 
tain the proceedings of the said court of inqnirv. 

Specification Sd. For that he the said David Porter, in the pub- 
lication made as mentioned in the last preceding specification, 
did give an incorrect statement of the proceedings of the staid 
court of inquiry. 



ffpecijicntion 4th. For that lie the said David Porter did. in the 
publi^aiiuu rt:t'eried to in the two last precediii" specifications, in- 
sert various remarks, statements, and insinuatmns, not warranted 
by thi* facts, highly disrespectful to the Secretary of the Navy, 
and to the said court of inquiry. 

Specijication 5th For that he the said David Porter did, in the 
same publication referred to in the said last preceding specifica- 
tion, witiiout any authority or permission for that purpose, makft. 
public, official couimunications io the government, and official cor- 
respondence with the government ; and has, on other occasions, 
between the 1st of October, 18!24, and tlie 1 5th of June, 1855, 
without authority or peimission therefor, made public, orders and 
instructions fn»m the government, and official correspondence 
with the government. " 

Commodore Porter being required to plead to the said charges 
and specifications, requested time till to-morrow morning; and, in 
the mean ti'iie, to be furnished with a true copy of the charges and 
specifications : at the same time stating as a reason for his request, 
that he had observed a ditFerence between the copy sent to him 
by the Secretary of he Navy, and that now read by the judge ad- 
vocate : all which was granted accordingly. He also requested 
permission to have counsel t6 advise and assist him in his defence, 
and a clerk to take minutes of the evidence ; which the cour«^ also 
granted, under the usual restrictions upon counsel in courts-mar- 
tial ; and Walter Jones, esq. was then named and admitted a* 
his counsel. 

FRIDAY, Jiiii/ 8. 

The court adjourned, by permission of the Secretary of the 
Navy, from the Navy-Yard to the Marine Barracks ; and being 
there regularly opened, and all present as before, commodore 
Porter was called uptm to plead to the charges and specifications 
as read yesterday. VVhereip >n, with the ieave of the court, he 
delivered, by way of plea, under a protest and reservation of all 
legril exceptions to the su!)stance, and legal efliect and sufficiency 
of the said charges and specifications, a memorial in the words 
following : 

Mr. President, 

Before I can be called upon, either to plead, or to 
except to any cliarges and specifications, 'tis necessary that it be 
definitively ascertained what are the charges and spi'cifications 
w!uch [ am p,vpecte.d to answer : and, strange as it may appear at 
this stage of the prosecution, nothing is more uncertain. 

On the 22d ilay of June last, 1 received, enclosed in a letter 
fr.)m the Secretary of t'l'* iNi»vy, ordering my arrest, and notify- 
ing me of m .' tri'l, a paper purporting', to contain the original 
cliarges and specifications exhibited against me. 'Tis true the 
paper was signed by no one; nd bore ni't, upon its face, any 
fyrm of auihenticatiun whatever; nor did it name or refer to any 



d 

prosecutor, informer, or judge advocate. Still the oflBcial source 
from which it proceeded, and fhe strictly official form and nature 
of the communication tliat accompanied it, and itientitied its 
character, loft me no doubt, and, I presume, now admit no doubt, 
of the authenticity of the paper, as an exhibition of the original 
charu;es and specifications against me; which, as such, were de- 
finitive and conclusive, and altogether unalterable, in form, or 
«ui)<itance, bur upon the proviso and under the circumstances 
provided in the 38th article of the rules and regulations lor the 
government of the Navy nf the United States.* 

When 1 was arrai(ine»l before .he court, yesterday, a paper was 
produced and read by the judge advocate, purporting, and pro- 
fessing to be nothing more than a copy of the original charges and 
specifica'tions ; meaning, as I presumed, of the same exhibited 
against me at the time, and in the ntanner before mentioned. But 
what was my surprise, on a comparison of the two papers, to find 
a very material variance in the iirst specification of the second 
charge. The "various letters, of an insubordinate and disre- 
spectful character," which [ am therein charged with having writ- 
ten to the Secretary of the Navy, are no otherwise distinguished, 
or identified, than by a na' ed reference to the rfflf^s,* neither their 
tenor, nor their substance and eiK'ect, is set out ; and so, I have no 
sort of notice what letters are designated as of that character, but 
this naked reference to dates. Then the dates are of the essence 
of the accusation: I have been cited here to answer, and have 
come prepared to answer for those designated letters, and no 
others. Let the dates be changed, and the substance of the charge- 
is changed ; in so far, as 1 am called upon to answer for other 
"letters, of an insuborilinate and disrespectful character." Now, 
sir, the copy of the original charges and specifications, produced 
by the judge advocate on my arraignment yesterday, specifies and 
co'mplains, in the first specification of the second charge, of such 
a letter as dated on the thirteenth day of April, in the^ear 1825, 
whereas no such letter is an^"^ where specified or referred to, in 
the aforesaid original exliibiiion of charges and specifications. — 
This variance is manifest, upon a comparison of the copy pro- 
duced by the judge advocate, with the original which 1 now here 
produce for the inspection of the court, with the orignal letter 
that acco'upanied it. 

Universal military usage, and the imperative provisions of the 
aforesaid 3Sth article of the rules and regulations for the govern- 
ment of the Navy, decide that 1 can be put to answer nothing be* 
y<uid the tenor of the chaiges an<l specifications originally ex- 
hil)ited against me. liut, in this particular instance, 1 waive the 
objection; requiring only that the prosecutor do now decide and 
declare his election, to abide the one or the other specification of 
the lett.'rs complained of, or to adopt both, if he please. At any 
rate, let the form and extent of the charges and specifications be 
BOW definitively arranged and conclusively settled. 

This point being settled, I shall pray the leave uf thecotrt tt 

* Vide I.aws United States, toI. o, p. 35^, 



10 

•nter my plea of not guiltj to all and singular the charges and spe- 
cificatioTis, under a protest against their sufficiency ; and reserving 
to iiyself the right, in the piogress of the trial, and in due time, 
of excepting to the said charges and specifications ; as designating 
no offence known to any law enacted for the government of the 
Navy ; as vague and indefinite, and altogether insutficient to put 
me upon my trial for the matters therein charged, or sqpposed to 
be charged. That these points may be submitted, in u way to ad- 
mit of the maturest deliberation, I have concluded, if it be the 
pleasure of the court, to suffer the trial to proceed, f(ir the pre- 
sent, under the general issue ; and to submit my exceptions to the 
charges and specifications, or such of them as 1 shall conclude to 
be exceptionable, at a more convenient day. 

Friday, July 8, 1825," 

Commodore Porter then delivered to the court the original let- 
ter from the Secretary of the Navy, dated June 22(1, 1825, an- 
nouncing his arrest, and the appointment of a court martial for 
his trial ; and stating that the charges and specifications, on which 
he was to be tried, were therein enclosed : and he, at the same 
time, delivered the original charges and specifications, so en- 
closed. The paper read, as such, by the judge advocate, yester- 
day, purported, from an endorsement on it, to be a copy of such 
charts and specifications : that delivered by commodore Porter, 
purported, both on its face, and from the letter enclos«ing it, to be 
no other than the original. The latter enumerated no such letter 
as the one dated on the thirteenth (lay of April, 1825, among those 
charged as being of '• an insubordinate and disrespectful charac- 
ter ;" but it did enumerate one dated on the thirtieth day of April, 
1825, which was altogether omitted in the former: so that there 
was a difference of two letters in the series of correspondence, 
variously specified in the original and in the copy ; or in the two 
exemplifications of the charges and specifications, produced o'n 
each side.* 

The judge advocate stated to the court that, as the exception 
therein pointed out by commodore Porter had been received by 
the accused, he should proceed with the case upon the charges as 
read before the court yesterday ; that the variation between the 
two papers, which had been pointed out, was, that a letter refer- 
red to in the one as dated the thirteenth day of April, was, in the 
other, by a mistake of the copying-cleik, dated tlie thirtieth. 

Alexander J. Dallas, a master-commaudant in the navy of the 

♦ Note, Various copies of the charges and specifications, from the official 
copy, produced and read by the judge advocate, and which was adhered to as 
the genuiuc and correct edition, were made out, for the use of the court, and 
of commodore Porter ; in all, or the greater part of which important errors 
were detected. In the first copy furnished to commodore Porter, in compli- 
ance with his request, precisely the same eiTor, in the dates of the letters, be- 
fore noticed, was repeated: and in a subsequent copy, in the hand writing of 
the judge advocate, it >vas again repeated: and, after being pointed out, was 
corrected. We are now in the possession of these two copies, so corrected. 

Thes« cii'cumstances are here noted as some illustration of the consistency 
and common sense of charging, as a military offence, verbal inaccuracies com 
mitted by % ckrk in transyibiiig tUQ minutes of the late court of inquiry. 



11 

United States, being; duly sworn according to law, (and the other 
witnesses having been <iirected to withdraw,) deprses and sayi-— 
•' 1 commanded the John Adams, bearing the pendant of com- 
modore Porter. We arrived some time in November last at St. 
Thomas, in the island of that name. In the afternoon of the same 
day. lieutenant Pliitt, in rompany with Mr. Cabot, an \merican 
gentleman residing at St. Thomas and, as 1 understood, otfio. t- 
ing as commercial agent for the United States, came on board 
the vessel. They mentioned to coiDmodore Porter that lieutenant 
Piatt, on a visit to Koxardo, had b. en very harshly tre^-ted by the 
authorities there. The comirmdore, on receiving this inforniation, 
determined to visit the place, and obtain an apology from those 
who had ill treated lieutenant Piatt. I was dirfcte<l the follow- 
ing day to get under weigh with the John Adam-; the Gr mpus, 
and Beagle being in company, and proceed to as near Foxardo as 
ve could get. The wind proving light, and the pilot being ot 
opinion that the draught of water of the John Adams was too 
great to permit an approach near the beach, the commodore di- 
rected me to anchor under one of the Passage islands, to get out 
all my boats, and to prepare an hundred and odd men for the ex- 
pedition. These preparations taking so much time as to make it 
late in the afternoon, I was directed to be ready, by one or two 
in the morning, to go on board the Grampus, which vessel would 
take the boats in tow. I did so, and we got under weigh in the 
schooner, and arrived the next morning about eight or nine o'clock 
in the harbor of Foxardo. On our arrival there we were directed 
to prepare the boats for landing. Immediately after landing, a 
battery was observed on the hill, at which there was a number of 
men, who, to all appearnnce, intended firing at us". The com- 
modore directed one of the boats to proceed and dislodge the men 
at the battery, and to spike the guns. We then landed, and after 
forming the men on the beach, lieutenant Crabb, with a portion 
of the marines, was directed to advance on the road leading to 
the town of Foxardo, and to take a position there. Lieutenant 
Stribling was despatched with a flag of truce, and a letter from 
commodore Porter to the Alcalde of the town. Shortly after Mr. 
Stribling left us we marched towards the town, leaving a guard 
of marines under lieutenant Barton to take care of the boats. We 
marched to within from twenty to forty yards of where the ma- 
rines under lieutenant Crabb were, when we halted to wait the 
return of lieutenant Stribling, During our march we fell in with 
a battery of two guns, which we also spiked. After waiting some 
time in this position, lieutenant Stribling was discovered return- 
ing from the town, with two officers, who were said to be the Al- 
calde and the captain of the Port. A conversation, through the 
medium of an interpreter, took place between commodore Porter 
and those persons, which resulted in an apology to lieutenant 
Piatt; the commodore asking the officers whether they were all sa- 
tisfied ? to which they assented- The commodore was then in- 
vited by the Alcalde to visit him in the town. The commodore, 
in company with myself and several other officers, and the ma- 
rines under lieutenant Crabb, went so far as to lead us by the 



IB 

orce collected ; after which the commodore returned and gave 
order- for us all to return to the beach. At the beach the men 
were lef.eshed with some grog, got into the boats, went on board 
the Grampus, and returned to the John Adams. 

(Interrogatpd by the Judge Advocate.) 

Q. At what hour did you leave the John Adams to go to Fox- 
ardo? 

Ji. Between one and two o'clock in the morning. 

Q. At what time was it expected you would arrive at your des- 
tination?, 

A. We calculated upon arriving very early in the morning. 

Q. Did any person from St. Thonias accompany you besides 
the pilot ? 

Ji I am under the impression that there was a young gentleman 
\vhtl^e name I rlo not recollect. 

Q. Are you acquainted with the object of taking him ? 

•d. No; I was not. 

Q. By L apt. Rogers. Was not the visit of comu^odore Porter 
to Fox.'.rdo for the purpose of resenting an insult to the American 
flag, in the person of lieutenant Piatt f 

A. It was tlie o^ensible object. 

Q. (By the same.) Were not the arrangements of commodore 
Porter to land in day light ? 

A. It was his intention to land as early as possible ; certainly by 
day-light: we calculated to arrive there by break of day. 

Q ^^By the same.) Could you have made your arrangements to 
land at night ? 

A. We coukl have arranged to land at any time of the night. 

Q. (By the same.) In what position did the schooners anchor in 
the iiarbor of Foxardo ^ 

A. The Grampus anchored nearly opposite to the battery I have 
alluded to; the Beagle further up in the harbor. 

(Further interrogated by the Judge Advocate.) 

Q. Were the colors Hying on board the schooners when they 
entered the hat hour, and when they anchored? 

A. I think they were. 

Q. Was the force despatched to dislodge the Spaniards from 
th»; battery, before or after the landing of commodore Porter? 

A. Before. 

Q. Had it returned before his landing? 

A. No. 

Q, At what time did it join the main party, and where? 

A. It joined us on the beach, and ahnost immediately on our 
landing. 

Q. How many men and officers landed? 

A I presume near two hundred. 

Q. Huw V ere they armed ? 

A. With muskets, bayonets, pistols, cutlasses, and boarding 
pikes. 



13 

Q How long after you landed was lieutenant Strtbling des- 
patched to the tdwii ? 

»4. Almost imnjediately, or soon after our landing. 

Q Whatainountof force had the Spaniards collected? 

w3. 1 cannot say what amount; but ia passing 'hem there ap- 
peared to be about sixtj or seventy men, with a field piece. 

Q. Did they appear to be regular tn»ops. or inililia? 

J. They had the appearance of militia ; they were not in uni- 
form. 

Q. Was there any complaint made to the authorities at Foxar- 
do, or C'immunication had with them by commodore Porter, on 
tlie subject of the insult oftered to lieutenant Flatt, before you 
landed ? 

^. None that I know of. 

Q. (By capt. Kogers.) Do you not think that the most ejflfective 
way to obtain redress was by landing ? 

X Yes. 

Q. (By capt. Wadsworth.) At the time of your landing, was 
any inquiry made by the .Spaniards as to what force it was.^ 

d. None. I do not think there was an individual to be seen on 
the beach. 

Q. [By capt. Ridgelev.] Was there any act of hostility com- 
mitted against any of the subjects of the King of Spain, previous 
to, or after landing ? 

^. The boat that was sent to dislodge the men and spike the 
guns at the battery, succeeded in the object ; whethei- thot was an 
act of hostility must be left to the court. If it was not, 1 know of 
none. 

Q [By capt.Tingey.] Was this act of courtesy by the author- 
ities at Foxardo, by invitation into the town, after these transac- 
tions you have related .'' 

^. Yes. 

Q. [By the same] Was any complaint, or any remonstrance 
made by the authorities at Foxardo, to co-omodore Porter at any 
time during his stay on shore, against his proceedings there ? 

^. None, that I know of. 

Q. [By capt. Wadsworth.] Do you know the nature of the 
apohigy made by the Alcalde and captain of vlie Port, whicli you 
say was satisfactory to commodo'e Porter, and the officers accom- 
panying him ^ 

A. The apology was made to lieutenant Piatt for the injury done 
hini, but 1 ain not able to state the terms of it. 

Q. [by capt. Brown.] What was the deportment of commodore 
Porter towards tiie Spaiiish officers whom he met ? 

A- Gentlemanly and proper. 

H. C^y capt. Hetdey.] Did commodore Porter consult with you 
previous to his landing.'^ If yea, state the amount of the consulta- 
tion. 

Ji. He did not consult me. 

Q. [By capt. Rulgeley.] What was the conduct of tleo";cers 
and uien who landed towards the subjects of the King of opain 
\vhom they met? 



14 

w3. Wc landed as 1 have stated, and marched up towards tlie 
town, committing no personal violence against any one. The con- 
duct of the officers and men was correct. 

^. [By capt. Elliot.] From whaf you could perceive in com- 
modore Porter, previous to, at, and atiei his Uuiliiig wiiu ins force, 
at Foxardd, was he actuated by any other motive than to obtain an 
apolfigv for the insult offered to one of the officers of his squadron? 

A. It appeared to me the only motive. " 

^. [By capt. llidgeley.] Was not the place where you landed 
considered as one of the i endezvous of pirates f 

S. It had been frequently said so ; I knew notiiing of it per- 
sonally. 

(l- [By the judge advocate.] In the conversation between com- 
modore Porter and the authorities of Koxardo, was any thing said 
on the subject of piracy or pirates, and was any demand niade for 
pirates, or for property plundered by thetn ? 

A. None that 1 know of: I was not near enough, however, to 
hear the conversation between them, and it was not until the com- 
modore asked the officers if they were satisfied with the apology, 
that I approached near enough to hear them. 

CROSS EXAMINED. 
((Questions hij commodore Porter to captain Dallas.) 

Q^neslion. Were not our proper colors hoisted, both on the 
scliouiiers and boats, wlicn they came in sight of the haibor, and 
during the wliole time of the approach and of the landing.^ 

Ansu-cr. Ycj. 

(l- NVas not every thing done openly and fairly, and in my own 
character, without any attempt to deceive ? 

A. Yes. 

(^. Did I not land in my uniform, thougli advised by some of 
my odicers to take it ott" lest it should make me too conspicuous? 

A. You landed in your uniform. I do not recollect any advice. 

Q. Did you- not, under all circumstances, consider it an effec- 
tual course, on my part, to secure the ollicers from insult and in- 
terruption, while engaged in the pursuit of pirates, in that quar- 
ter, by intimidating the inhabitants of thosp towns or districts sus- 
pected of hailwring and assisting the pirates? 

.f. Certainly, I lliink it was a course that would intimidate 
other places supposed to be a receptacle for pirates; and calcu- 
lated to prevent them from suffering them to c(»uie there ; and a 
means of obliging them to pay more rps[)ect unto our oilicers. 

Q. Were not the guns training on us, at the time I ordered the 
party to land and spike them ? 

e/?. I think they were endeavoring to train tlien^ on us. 

(^. Did not lieutenant Stribling, on his return with the flag, 
inlbrm me, that the per)ple or authorities of Foxardo, had heard of 
my coming and were preparing resistaiue ? 

A. 1 heard of the circumstances, but do not recollect how or 
from whom I heard them. 

Q. Were not my orders, to the partv who landed, to spike the 
guns, without injury to the person or jiroperty of any of the in- 



15 

habitants ; not to fire, unless first fired upon ; and generally to 
respect the persons and property of the inhabitants? 

Ji. 1 consider those as tlie orders that were given. 

Q. Did any of the main body enter the town of Foxardo? anil 
was not our whole force so disposed, as to impress the people with 
a sense of our disposition, and our power to repel and punish ag- 
gression; at the same time that all actual violence was avoided ? 

w3. The main body did not enter the town. To the latter clause 
of the question, I answer, yes. 

Q. Was not the grog, sent to the beach as a present from the 
town to the men? 

»S. I dill not understand it in that way. The purser was di- 
rected to procure some, and when he ottered to pay the person 
from whom he procured it, he was refused and told it was intend- 
ed as a present. The person from whom it was procured was one 
of those who accompanied the ALlcalde and the flag. 

Q. After the negotiations and explanations were ended, did noC 
the authorities and inhabitants appear well satisfied and acquies- 
cent in my proceedings? 

Ji. They accompanied us, in considerable numbers, down to the 
boats ; and there was no other appearance tlian that of a good un- 
derstanding bt'tween all parties. 

Charles T. Platt, a lieutenant in the navy of the United 
States, being cfuly sworn according to law, deposes and says. 

On the 24th of October, between the hours of seven and eight 
o'clock in the morning, Mr. Bedford, a clerk in the house of 
Messrs. Cabot and Bailey, commercial agents at St. Thomas, 
with a letter from those gentlemen, came on board the Beadle 
then under my command, lying in the harbor of vSt. Thomas, in- 
forming me, that their store had been robbed the preceding night 
of goods to not less than the amount of S 5000. The letter con- 
tained a recjuest for me to go in search of the goods. 1 then went 
ashore and inquired of merchants in that place, who had been pre- 
viously robbed, in order to ascertain whether 1 would be justifia- 
ble in proceerliiig in search ot these goods to Foxardo, at the east 
end of Porto Rico. On making the inciuiry I was perfectly satis- 
fied, as far as I could be without knowing positively, that tli& 
goods vvere then on their v.'ay to Foxardo. 1 accordingly got un- 
der weigh as speedily as I could, taking with me a pilot, and a 
clerk of Messrs. Cabot and Bailey, with a description of the goods 
contained in the advertisement, herewith presented to the court. 
(]Mr. Phttt here presented an advertisement to the court describ- 
ing the goods lost.] On the evening of the 26th, about six o'clock, 
I anchor ed in the harbor of FoKar<lo with my colors flying. I was 
anxious if possible to get on shore that night, but my pilot, who 
acted not merely in that capacity, but as my guide and inter- 
preter on shore, through ignorance or otherwise, declined going, 
stating that he was not able to shew iv.t- the way at that late hour. 
On the morning of the £rth, at an early houc, a boat came along 
side with some person in it, bearing the appearance of a soldier", 
wlio informed n^e that the captain of the port was anxi<'us to see- 
me on shore, presenting his compliuieKts at the same time, il was. 



16 

at that time, preparing; tb go on shore ; 1 was somewhat fearful 
thiit the character of the vessel was not known on t^horr" ; and 
asked the man, whether the character of the vessel was known oa 
shore ; he answered that it was. Lest he miglit have been mis- 
taken, I told him to inform his commanding officer, that it was 
the United States schooner Beagle, and that I should be on shore 
as soon as possible. So sonii afterwards as was practicable, ia 
company with lieutenant Riichie, Mr. Bedford and the pilot, I 
visited the shore. On my landing I was told that I could not pro- 
ceed to town. — This however, I received from a parcel of raga- 
mulfians, why appeared to me more like highway-men, th.in a-ny 
thing [ could compare them to. I attempted, after this, to go again 
on board my vessel ; I was prevented from doing so. This led 
me to inquire what was the meaning rtf this course of conduct; 
whether they were authorized. I was informed, by a citizen stand- 
ing there, that they had no authority to detain me. In evidence 
of which horses were pr>. cured (widiout my asking,) by the citi- 
zens there for myself and ali who were with me, to ride up to the 
village. On my arrival at the village I reported myself, havmg 
been advised so to do by some of the citizens, tirst to tlie captain 
of the port ; made known to him my business, the object of my 
visit, and my reasons for my appearing in citizens' dress; and 
also a letter to Mr. Campus, shewing the cliaiacter of myself and 
vessel. Mr. Campus was a man who, from his wealth, stood high 
as a person of respectabdity. The captain of the port appeared 
to be perfectly satisfied with the character of luyself and my ves- 
sel, took down the names of the officers and the force of the vessel, 
then directed me to call on the Alcalde. I did so and pursued the 
same course with him as with the captain of the port. He also 
appeared perfectly satisfied, and approved very much of my hav- 
ing come on shore in citizens' dress : said it was a very prudent 
and necessary precaution. He also expressed a confidence in suc- 
ceedinjj in securing the goods ; said he liad no doubt, but he should 
be able to procure them before night. This conversation was pri- 
vate; there might have been others in the room, but none were, 
I believe, within hearing, but the interpreter and ourselves. 

The court not beir>g able to complete the examinatidn of lieu- 
tenant Piatt, adjourned till to morrovv morning at 10 o'clock. 

SATURDAY, Jul^ \Wi. 

The court met pursuant to adjournment uf yesterday, present 
all the members of the court, ('excepting captain Eiliot.J tne 
judge advocate and captain Porter. 

The president ann?>unced to the c(;urt, that captain Elliot was 
sick and confined to his bed, and wholly ur'able to attend the 
meeting of the court to day. The accused stated that he had no 
objection to the court proceeding; in the business before it, and 
tliat when captain Elliot should l)e able to resume Ids seat, the 
proceedings of the court during his absence should be read to him. 
\\ liereujion the four* decided to proceed. 

T!;e court resumed the examination of lieutenant Piatt. 



" The Alcalde then informed me that the recovery of the goods 
might probably be attentled with some expense : I stated to him 
that it it were necessary to ofter a reward, I was authorized ta 
ofter a reward not exceeding one thousand dollars; for which I 
considered the hand -bill yesterday presented to tlie court as a 
sufficient authority. I then proposed to the Alcalde the propriety 
of my visiting; the ditt'erent stores, with the clerk I had i^rought 
witii nie, fur the purpose of examining and identifying the goods. 
The Alcaide observed that as I had very properly come on shore 
in citiztus' dress to prevent any suspicion ; that it was advisable 
to let the matter rest entirely with him — that were I to accomi- 
pany him, though in citizens' dress, suspicion might be excited. 
I then left his ullice, under the impression that the goods would 
be procured before niglit, by the police of the place. A short 
time after, I received a message from the Alcalde, saying that he 
•wished to see me at his office. I was then fully under the im- 
pression that he had obtained soine information, which would lead 
to the recovery of the goods. Under this impression 1 went over 
to the office, accompanied by lieutenant Ritcliie and the pilot. On 
my arrival, I infjuired of the Alcaide, whether he had sent forme 
and for what purpose. I was answered by the captain of the 
port, in the most insulting, most provoking, and most aggravating 
manner, that it is possible to imagine ; saying that he had sent for 
me himself, to dematui of me my register, on the refusal of which 
he would conliue me in prison. I told them that 1 thought I had 
already satislied them of the character of the vessel; that 1 had 
no register to shew them — that a man of war carried none ;— that 
my commission, my uniform, and my colors, were all that I had 
to shew to establish my character ; — that I had already offered to 
exhibit these, which they considered unnecessary, being perfectly 
satislied of my character, without it. 1 then expressed my aston- 
ishment at the course of conduct they had pursued, so unexpected 
to me, and so unprecedented ; and furthermore that I considered 
it to be a duty, which I owed to my country, to myself and to the 
officers under my command, to make a formal report of their con- 
duct to commodore Porter. Lest however they might deny hav- 
ing confiiied me, I left the office, with the iniention of returning 
on board my vessel, and leaving the port, not consideiing myself 
as a prisoner by their mere say so. I had proceeded about five 
rods from the Alcalde-s house, when I was pursued by the Al- 
calde himself, and two soldiers; the Alcalde himself seized me 
by the collar; 1 was brought back and placed under charge of a 
sentry. Alter, perhaps, an hour's debate among themselves, I in- 
quiied of their interpreter, what they meant to do; he informed 
me that as as they were not satisfied with my character, my hav- 
ing shewn no evidence thereof, they were determined to keep me 
confined until I should produce some such evidence, or they 
should hear from St. John's. I then requested permission to go 
on board with any officer they might choose to send, whom I 
pledged to satisf. of the character ot myself and vessel. This, 
liowever, was denied me. 1 then requested that I might send Mr. 
Ritchie or the pilot on board, — that they might keep me in ban- 



18 

dage if they chose: all was denied me, and there was no chance 
left. I then made another proposition, that I should send a note 
by any officer of theirs, whom they pleased, and pledged myself, 
that if he did not return, they might do witii me as they thought 
proper. This was refused. After perhaps anothwr hour they per- 
mitted me to send Mr. Bedford on board for iny commission, 
■which, at the time, they said was all they would require. I how- 
ever directed him to bring my commission and uniform. So soon 
as he returned, I put on my uniform and presented my commis- 
sion. After consulting again for, perhaps, half an hour, they pro- 
nounced my commission a forgery, and mi* and my officers a 
damned pack of pirates. I then, findiog the probability of my 
being confined there some time, proposed the propriety of going 
to some decent house, where they might place sentries over me. 
In answer to this, the king's house was recommendeil, as I under- 
stood ; I, being at the time fully tinder the impression, that the 
king's house was the most genteel house in the place, invited Mr. 
Ritchie, and even the pilot to accompany me, they being prison- 
ers like myself. On my approaching near enough to discover 
that it was a mere guard house, well calculated to pioduce the 
yellow fever or plague, I declined taking up my lodgings there, 
unless they forced me to do it. After some few minutes they 
consented to let me return to the Alcalde's office, under charge 
of a sentry. Being fully aware of my unpleasant situation, [ 
again, although repugnant to mv feelings, did ask the interpreter, 
what turthermore they required of me ; after making the inquiry 
of the proper autliorities, he answered that T had shewn no other 
commission than one as lieutenant and not one as lieutenatit cotii- 
mandant. They were determined to keep me there until they 
could hear from St. Johns, or until I produced something that was 
satisfactoiy. I asked permission to setid Mr. Bedford again on 
boatd, vvhich was granted. I directed him to bring all n»y papers 
on shore, that I might come across some paper which might be 
satisfactory, and which it would not be improper to shew them. 
On the return of Mr. Bedford, 1 produced the orders from com- 
modore Porter to me, directing me to take command of the Beagle. 
They told me an appointment of that kind could not emanate 
from any thing less than an admiral ; and that they were thoroughly 
satisfied that I was a pirate : as for commodore Porter, there was 
no such man in our navy, and that I could not hoax them in that 
way. 

They still continued me confined until a late hour in the after- 
noon : towards sundown they, without any farther application 
from me, and for what reason 1 know not, released me, and allow- 
ed me to go aboard my vessel. We left the village mortified, and 
hissed at by the ruff scuft" of the place, went on board, got under 
weigh, and proceeded to St. Thomas. 

On the I2th November commodore Porter arrived at St. Thomas 
in the John Adams; as soon as I came to anchor I visited the ves- 
sel, reported myself to him, and mentioned to him the circumstan- 
ces which led to my visit to Foxardo, and the treatment I had met 
with. The commodore informed me it was necessary I should 



19 

make out a written report ; I stated to him it should have been 
prepared had 1 expected him su soon, und that lie should fiave it. 

Theconimoddre said, if circumstances justified my going in the 
manner in which I went, thai he would visit Foxaidu, and obtain 
redress for the insult.oftered to me, and to the flag. I refined 
the commodore to Messrs, Cabot and Baily, a'.d to Mr. Furnis, 
both houses being commercial agents at that place. 

I went on shore, at the request of the commodore, to request 
Mr. Cabot to come on board, [Mr. Furnis was then on boar(i,3 
and to procure a pilot to carry us to Foxardo. Mr. Cabot return- 
ed on board with me. The next morning 1 got under weigh with 
the Beagle, having the pilot on board, stood out of the harbour of 
St. Thomas to join the John Adams, then under weigh, delivered 
my written report to the commodore, and was directed by him to 
proceed ahead with the pilot lor Foxardo. The wind, however, 
proved light, and we were compelled to lay too, oifand on, during 
the night. The next morning i was nailed from tt»e Adams, and 
directed to proceed ahead as before. For reasons unknown to 
me, the commodore gave an order, and (he vessels came to anchor 
about nine o'clock in the morning of the 13th, under the lee of 
Passage island. At midnight of the 13th, the Grampus, Beagle, 
the barges, and boats of the Adams, with as many otiicers and men 
as could conveniently be spared, got under weigh, and, about eight 
o'clock next morning, arrived in the harbour of Foxardo. The 
barges were manned and oflicered ; one barge was sent to attack 
a fort on an eminence mounting two guns; the rest of the men 
landed on the beach. The Grampus was anchored off the bat- 
tery ; the Beagle, passing by the battery, anchored so as to cover 
the landing of the men. I was directed by commodore Porter, as 
he passed me, to follow him with as many men as 1 could conve- 
niently carry in my boat. Lieutenant IStribling, about the time 
of our landing, was despatched to the town with a flag of truce, 
and a communication from commodore Porter to the authorities of 
the place. About fifteen minutes after our landing we weie di- 
rected to fall into line and march up: we got there in, perhaps, 
about fifteen or twenty minutes from the time we started from the 
beach. On the out-skirts of the town, I mentioned to the com- 
modore that there were two guns on a causeway on the road to 
the village. He ordered some officers and men to spike them. 
After ariving at about forty or fifty rods from the village, we 
halted ; a short time after, we discovered a white flag, which 
proved to be the flag of lieutenant Stribling, accompanied ^y the 
Alcalde, the captain of the Port, the interpreter, and a number of 
the citizens. 

Before they met commodore Porter, they professed their ig- 
norance of the object of his visit. The commotlore stated to them 
that they ooglit to have known the object of his visit from the tenor 
of his note; that he came there for the purpose of obtaining suita- 
ble redress, or an apology for the insult, that had been offered to 
the flag of the United States, in my person, [pointing to me.] 

This seemeil, at first, to create some considerable astonishment, 
on their part, that they should be accused of having treated me in 
any way improper. 



20 

The commodore then asked the Alcalde, in a very positive man- 
ner, wlielltcr hf. had not imprisoned me? His answer was, that he 
had, after knowing my character as an officer in the United States' 
navy ; but that he was not to blame^ for tliat he had been cumpelled 
to do it by others. The commodore then told him, that, as he was 
the chief magistrate of the place, lie had nothing to do with others; 
and that he should regard him as responsible for any acts of vio- 
lence that might have been comnutted on me; that there was no 
time for any altercation ; that the time had expired, within five or 
seven minutes, which he had allowed them ; that an apology was 
necessary ; such a one as should be dictated by him. a relusai of 
wliicii would compel him to resort to arms, which should termi- 
nate in the final destruction of the village. An apology was made. 
It was that they had imprisoned me wrongfully; thai tliey were 
sorry for it,and'that,in future, they wimld respect the United States' 
naval ollicers, as their character deserved. After that, we were 
pressingly invited to come into the village, and strongly urged to 
take some refreshments. Commodore Porter did advance; pass- 
ed by a six pounder, which was primed, and a man standing by 
with a lighted match, and a number of armed men that had been 
collected. 

lie then ordei ed us to return to the beach, without entering the 
heart of the village. The commodore informed me at the beach, 
that it was, at first, his intention to have accepted the invitation, 
and entered the village with the men, but, apprehensive that some 
difficulties might arise, amongst the sailors and men, he thought 
it better to return, and have the refreshments brought dow n to the 
beach. The refreshments were brought down ; we partook of 
them, proceeded to sea, and re-joined the John Adams. 

( Interrogatpd bij the Judge Advocate.) 

Q. Was it the object of your visit to Foxardo to recover the 
property that had been stolen at St. Thomas, or to obtain the per- 
sons who had perpetrated the robbery, or both .^ 

»4. The object of my visit was to obtain the property, and the 
pirates, as they were supposed to be, through the police, and 
through (hem only. 

^. Was the United States' flag flying on board the Beagle dur- 
ing the time that she lay in the harbour of Foxardo? 

A. The flag was flying when we arrived, and was hoisted again 
at nine o'clock on the following morning, as I presume; such be- 
ing my orders, anil such the regulations of the service. 

Q. Was there any flag, ensign, or other distinction, displayed 
at the time of your landing ? 

A. None at the time of my landing ; but, as I stated before, I en- 
tered the harbour with my flag flying, and it was hoisted at nine 
o'clock the next morning. 

Q. V/hen you landed, do you suppose that the Beagle was known 
on shore to be an American man-of-war? 

A. I feel perfectly satisfied that her character was known. 

Q. Were there many persons on the shore who saw you land 
iroraher? 



21 

J. Probably fifteen or twenty. 

({. What was vour object in lauding without your unifonn ? 

Ji. To prevent'any suspicion, on tbe partofllie boats in tbe har- 
)our, of wliich there was a great number. 

Q. Could not the flag of the vessel be seen as well from those 
)oats, as from the villasi!;e of Foxardo, and the character of the Bea- 
;le as well ascertained f 

J. Yes; but all uierchant vessels carry the same flag that we did? 

Q. Had you, when you landed, any document of any descrip- 
ion to verity your claim to the character of an American otticer? 
[f so, what was it .? 

Ji. We earned a letter from one of the most respectable mer- 
cantile houses in St. Thomas, to Mr. John Campus, a merchant in 
foxardo ? 

Q. VV as that an open, or sealed letter ? 

Ji. It was a sealed letter ; but had been read to me before it was 
sealed. It was given me for the purpose of enabling me to go on 
jhore in disguise. 

Q. Did ^ou see Mr. Campus while on shore? 

Ji. I met him at the entrance of the village, before seeing the 
:aptain of the Port, and the Alcalde. 

Q. When did yitu hand him the letter ?» 

J^. The moment 1 arrived at the village. 

Q. Did he accompany you to the house of the captain of the 
Port, and the Alcaide ? 

Ji. He was at the captain's of the Port, I think, and certainly 
it the Alcalde's, and reail the letter to them both in my presence. 

Q. Do you know whether Mr. Campus had, or had not, cA that 
time, in his possession, the goods of which you were in search ? 

Ji. I do not know personally; 1 can only judge from the evi- 
dence that I brought home, and am fully under the impression 
that he was, at that time, in possession of the goods. 

Q. When you were interrupted on the beach, on your landing, 
do you suppose those who did it knew you to be an American 
ofticer ? 

J. Yes. 

Q. From what circumstance ? 

A. Because they had sent a boat alongside of me, and said they 
knew my character, and I had sent word to them before landing, 
of my character. 

Q. Did you inform the citizens, who interfered in your behalf on 
the beach, who you were, and what was the object of your visit ? 

Ji. I mentioned that I was an American oflicer, in commai.d of 
the Beagle, and that 1 wished to report myself to tJie proper au- 
thorities. 

Q. Did you, in person, proceed to any of the stores in town to 
inquire after the goods you were in quest of? 

^i. I was in no store in the place, except Mr. Campus's store 
when I went to see him. I was in one other, the store of the gen- 
tleman who had lent me his horse ; 1 was asked into his house, and 
passed into the store, but no further, and, with Mr. Bedford, pri- 
vately examined some of the goods, to see if they corresponded 



22 

^iUi uhat bad been taken. This was not done with a view of in- 
terfering with the authorities. 

Q. Uid you see Mr. Campus after you first left the office of the 
Alcalde ? 

A. Yes; I found him there when I went to the Alcalde's, after 
being sent for; he was engaged in conversation with the rest, and 
appeared very much confused. 

Q. Did you appeal to him to verify your character, and what 
was Ids reply? 

.^. I appealed to him ; he replied, that he had stated my charac- 
ter; urged Mr, Bedford and myself to go to another place to look 
for the goods, which I declined : he ottered us horses to go, and, [ 
believe, that, if I IkuI boen disposad to go, they would have re- 
leased me. 

Q During the period that elapsed between your first visit to 
Foxardo, and your seeing commodore Porter, at St. Thomas, had 
you made any report of the aKair to iiim, or to the government? 

»3. In one whatever. 1 expected him at St. Thomas, (where 1 was 
directed to await his arrival,) though not so soon as he actually 
came. 

Q. Did you, during that period, consider that the flag of the 
United States had received an insult, which required atonement? 

J. Ves.Idid. 

Q. Did Mr. Bedford, or any other person, accompany you to 
Foxardo on the second visit? and, if so, for what purpose? 

A. Mr. licdford went down on the second visit, but did tiot 
land. The object was, that, if any discovery should be made, he 
might be theie to idenfily the goods. 

Q. In the convcisatioM between commodore Porter, and the au- 
thoiities, was any thing said on the subject of tliose goods, and 
what ? 

Ji. 1 do not recollect that any thing was said on the subject. 

Q. Vv'hut is the distance between the beach where you landed, 
and the village at Foxardo? 

ji. About a ntile and a half. 

Q. Had any comjjlaint been made, or ex})lanation asked, either 
by yourself, or commotlore Porter, for the insult vou had received, 
either of the authorities at Foxardo, or of the island, before your 
secftnd visit ? 

Ji. None by mvsoir, and none that I know of by tliecoinnu>dore. 

Q. (By capt. i^odgcrs ) NVhat is the character of the inhabit- 
ants of i'oxardo? Is it considered a place of refuge for pirates, 
and are not pirates openly pr(»tected there? 

.^. Yes; 1 liHve heard so. 1 have understooil that hundreds of 
thousands of ilollars worth ol property had been stolon at St. 
Thomas, and remnants, or parts ol the goods, discovered there, 
and in the neighbourhood. 

Q. (llv capt. Thompson.) Will you please to state to the court 
the particular instruction, under which you thought yourself au- 
thoriz.ed to land at Foxardo, in order to recover the property in 
question ? 

oS. The instructions under which I acted were the general in- 



23 

structionsfrom commodore Porter, of which 1 was furnished witii 
a copy, as well as the other vessels in the squadron. 

Q. (liy the same.) Do you know tlio house of Cabot, Bailey, 
and t'o. to be accredited agents of the United^Statot r 

Jl. I know them to be respected as such by the authorities at St. 
Thomas, and that they act as magistrates; [ mean that Mr. Cabot 
dots. 

[Cross examined by Commodore Porter.] 
(Q_uestions to Lieutenant Flatt, by Commodore Porter.) 

Q. Had not the island of Porto Rico, and especially the district 
about Foxardo, been notorious, from common leport, before, and 
at the time of your visit, as a rendezvous and refuge for such of 
the pirates as were unable to keep tlie sea ; and who were gene-- 
rally said to make that their retreat, with their plunder, after their 
marauding expeditions ? 

Jl. Yes. 

Q. Were not these reports communicated to me, and did I not 
receive fretjuent and heavy complaints of the piratical character 
of Foxardo, and the country arour.d ? 

Jl. Yes ; I was present at a conversation between commodore 
Porter, and respectable merchants at St. Thomas, after his arrival 
on the twelfth of November; they stated that protection was af- 
forded to pirates by the inhabitants of Foxardo ; that they were 
generally belipved to be concerned with the pirates. They refer- 
red him to respectable gentlemen on shore, who had letters from 
respectable people to that effect. 

Q. Were not the guns of the battery trained on the Grampus, 
as she lay abreast of the buttery, before any order was given to 
land? 

A. I do not know ; they were so trained before they left the 
Grampus. 

Q. Did the party who landed to spike the guns, make any at- 
tack, or ofter any violence to the persons at the battery, or use 
any force to dislodge them ? 

A. The party lauded and took possession of the fort; the Span- 
iarrls abandoned it before ouiinen reached them. 

Q. Was not the most perfect order preserved among our men 
on the march to Foxardo r 

A. Yes. 

Q. Was any violence or injury, of any kind, committed by any 
of our men, upon the persons or property of any of the inhabit- 
ants? 

A. None whatever. 

Q. Were not the grog shops, on the road from the harbour to 
the town, thrown open, and temptingly set out witii drink, and 
without any protection ? 

A. They were ; liquor was brought out and offered to me as we 
were returning ; 1 did not see any thing of the sort as we went up. 

Q. Did you see or hear of any instance of the men's? quitting 
their ranks to enter these shops, and had they any other means of 
getting refreshment until their return to the beach? 



^4 

A. None whatever. 

Q. Were you near us during my conference with the Alcalde, 
and did you hear distinctly wnat passed? 
A. Yes, I was alcfhg side of him. 

Q. Did I not exact, in addition to the apology for tlieirill treat- 
ment of you, a promise that aid and assistance should be furnished, 
and respect shewn to American officers, who ii»ight go to Foxar- 
do, in pursuit of pirates ; and did not the Alcalde promise such 
aid and respect, so far as lay in his power ? 

A. Yes, that they should be respected and the Alcalde promised 
it. 

Q. Did not the Alcalde, on being asked by me, why he had put 
you in confinement, say that he could not avoid it, that he had 
been compelled to do so by others ? 
A. Yes. 

Q. Did you not understand, from the said conversation and the 
excuses made by the Alcalde, that there was some mystery in the 
traiisaction ; and that the regular authorities of the place had 
been overawed, and forced from their duty, by the irregular in- 
terference of unauthorized persons? 

A. I drew that conclusion from the conversation that passed, 
and the apology made. 

Q. Did you not ask the Alcalde, in my presence, if the goods 
had been recovered, and did lie not answer in the negative ? 
A. [ do not recollect any thing of the kind. 
Q. Did you know, at the time you went to Foxardo, that Cam- 
pus had the goods, or did you get that information afterwards? 
A. I received the information since. 

Q. Did you hear, from many of the persons on shore, after my 
interview with the Alcalde, that they had been expecting me and 
preparing to resist me ? 

A. I understood from the interpreter that the visit was notun- 
pected to him, that he anticipated it. 

Q. Did not the Alcalde and the inhabitants, generally, appear 
to be perfectly satisfied with my proceedings, and did we not all 
part in j^ood fellowship and with mutual civilities? 
A. They did. 

Q. Did you hear any complaint from any of the inhabitants, of 
my landing, or of the treatment they received ? 
A. None whatever. 

Q. Upon your arrival at St. Thomas, after your confinement at 
Foxardo, what American olficcr did you find in command there, 
and did you report to him, either verbally or in writing; or did 
you ;;;ive him any information of what had passed at Foxardo, and 
what aclvice or instructions did he give you f 

A. Lieutenant 8loat came in, some days after. I informed him 
what ii.'id passed, but made no formal report to him. He expressed 
an opinion, that it was no more than we had a right to expect 
from them, but gave no advice. 

Q. Did you make any fornjiil report to me of those transactions 
immediately on my arrival at St. Thomas ? 
A. I did as I have before stated. 



)i:i 



Q. Did _)i)u iiftcrwanU carry your vessels to Ponce, Porto Rico, 
01- i^o there on otlier uflicial business, by order of lieutenant Sloat? 
and liow were you received and treated tliere by the public au- 
thorities and inhabitants; was it not with marked distinction and 
respect? 

A. I went, not by orders of lieutenant Sloat, but of myself. I vi- 
sited P(Mice some time after, in consequence of the accompanying 
letter rr(»ni Mr. Furniss;*' where 1 was received with the greatest 
possible attention and respect. 1 was invited to a public dinner, 
where tliere were about forty of the most respectable citizens: 
and it was known, that 1 was the same peison, who had visited 
Foxardo ; and I landed in the same unifortn, that I had on at Fox- 
ardo. 'I'he partuulais of my vi-sit appear in a report made by me 
to commodore Porter, datcil February 10th, 182.3. 

Q. Did thev make any such remark as this, that they were de- 
termined to shew by their conduct towards you, that they were 
not yiruti's : and did you understand them as alluding to the af- 
fair of Foxardo? 

A. No. I understood they were mortiSed at the treatment I 
had received at Foxardo, and were determined to shew that they 
were a difterent sort of peo])le. 

Q. Did not some of the most respectable inhabitants of Foxar- 
do apologize for tlie conduct of the Alcalde towards you, by say- 
ing he was, somehow, under the influence of the populace? 

A. Yes. the interpreter himself told me that tlie Alcalde was 
swayed by others ; and an Irish geatlenian there took a very ac- 
tive part on the occasion. 

The court adjourned till ten o'clock on Monday morning. 

MONDAY, July Wth. 

The court met pursuant to the adjournment of Saturday ; pre- 
sent all the mend)eis of the court, (excepting captain Wadsworth,) 
the judge advocate and captain Porter. » 

A letter was read to the court from captain Wadsworth to the 
President, accompanied with a certificate from his attending phy- 
sician, stating tliat he was too much indisposed to be able to at- 
tend the court niartial this day. 

The court (tlie accused assenting,) took the same order on this 
occasion as ofi Saturday in consequence of the absence of captain 
KHiot. 

The minutes of the proceedings ot Saturday were then read by 
the judge advocate. 

The esannnation of lieutenant Piatt was resumed, 

Q. (By the president of the court.) Mow far is it from Fox- 
ardo to St. Johns, and is the communication between the places 
frequent? ' 

A. I understand the distance is about forty or fifty-five miles, 
and that the communication between the places is daily. 

Q. (By captain Porter.) Was it generally anticipated and un- 

♦ NoTK. — This letter, of which we have no copy, wan delivered to tlie judg'c 
.advocate ; it is wholly intmuteiial. 



26 

derstootl by the oflkcrs of tUc navy on the station, and by the 
persons at St. Thomas, uho had heard of the tieatment you had 
received at Foxardu, that I should proceed to the latter place and 
get satisfaction for their comluct ; and, that in doing so, 1 should 
land with an armed force and march to the toun ? 

A. It was hoped by the merchants and respectable citi/ens of 
the place, that such would be the case : and was wished for by 
(ho officers oa tlte station. 

Q. Did this general anticipation of my intended course, proceed 
from any commuincation from mc to the oflicers or others, of my 
intended operations, or merely from the general opinion of the pro- 
priet. or necessity of the measure? 

A. From the opinion of the propriety and necessity of the mea- 
sure;. 

Q. Was it the general opinion, and^'ourown, that the course 
which it was supposed I intended to pursue, was a necessary and 
ettectual measure to repress piracy, and ensure resjjcct and pro- 
tection to our officers and detachments, when landing in the dis- 
charge of their duty ? 

A. Yes ; it was tliou^rht to be necessary that such a stand should 
be taken. Until it happenetl, no vessel dared leave the port with- 
out the protection of a man of war. 

Q. Was it the general opinion, and you own, from your experi- 
ence of the consequences of the operation at Toxardo, that it had 
made the tnost beneficial impression, and had produced eflectsof 
great practical utility in the accomplisluuent of the general ob- 
jects of our cruize, — the suppression of piracy? 

A. It was decidedly my inApression : and the subsequent treat- 
ment I have received from the authorities in the Spanish West- 
India Islands, and their conduct since, has confirmed this impres- 
sion. I never before knew of any aid or assistance being furnished 
by the authorities of Porto Rico ; it has been done since. 

' Q. Had von not been cruizing, a considerable time before your 
first visit to Foxardo, in the neighbourhood of that place and St. 
Thomas, in the Beagle? Was not the Beagle well known in those 
parts, and was there not daily and hourly intercourse by means of 
small boats between St. Thomas and Foxardo ? 

A. Yes, I had been (»n the station a short time ; I had been 
cruizing in the neighbourhood ot" Foxardo. within sight of the east 
end of the islantl, before I went to St. Thomas, and there was a 
constant comnninication between Foxardo and St. Thomas. 

The examination of this witness being closed, — at the request of 
a inember, who had a propositi<»n to submit, the court was cleared. 

The proposition having been submitted, after deliberating upon 
the same, the court adopted the following resolution. 

It appearing to tlie court that what purports to be the proceed- 
ings of this court, and particularly the evidence given by the wit- 
nesses, who have heretofore been examined, have been published 
in a newspaper of this city; and this course appearing highly ob- 
jectionable, and in particular, virtually annulling a special rule of 
all courts martial, that no witness previous to his examination 
shall be permitted to know what testimony has been given by any 



27 

other person ; — it is ordered by the court, that no spectator, other 
than such persons as may be particularly employed by captaia 
i*orter, and tor his use, be permitted to take minutes of the pro- 
ceedings of the court. 

Whereupon the court was opened, and the foregoing proceed- 
ings announced. 

Robert Kitchie, a lieutenant in the navy of the United States, 
being duly sworn according to law, deposes and says, 

I landed in company with Mr. Platt at Foxardoon the morning 
oftlie Srth of October. Mr. Bedford, a clerk of Messrs. Cabot 
and Bailey, and the pilot, were in company. It was about six or 
seven in tlie morning: we met a number of men on the beach. 
One man, with a cutlass in his hand, but without any appearance 
of bt'.ing an olllcer or soldier, addressed lieutenant Platt, asked 
him lor liis register. Lieutenant Platt replied, that he carrietl no 
register; told him what vessel it was — that it was the United 
States schooner Beagle. He inquired for the captain of the port, 
and was told he lived in Foxardo. (3ne of the citizens otiered to 
show us the way, atul we started oft". We saw the captain of the 
port on our arrival at the town, and told him our business. Mr. 
Plait told Iiiii), that he had come on shore in citizens' dress — that 
he had brouglit with him a clerk of the house, whose goods had 
been stolen. The captain of the port asked lieutenant Platt tor 
his register; he replied that lie carried none; he was satisfied ap- 
j)arently. Lieutenant Platt shfiv/ed him the letter he had for Mr. 
Campus : he sent a young man witii us to shew us where Mr. Cam- 
pus resided. On our leaving him he appeared perfectly satisfied. 
After Mr. Campus liad read the letter, he offered to render us all 
the service in our power; said it would be necessary for us to go 
over to tlie Alcalde's house, and he would forward our views. On 
our arrival there we found the captain of the port. Mr. Campus 
related to the Alcalde, what our object was ; he appeared per- 
fectly satisfied, and shook hands with us after an introduction. 
Mr. Campus then requested the Alcalde, and the captain of the 
port, to g') into a private room, that he wished to speak with them. 
The door was siiut — we heard them in conversation. Lieutenant 
Platt proposed to me to go over and get some breakfast, as tlicy 
were busy. VVe had just finished our breakfa-st, when a negro 
came over with a sword in his hand, and told us the captain of the 
port wished to see us. On our arrival at the Alcalde's house, tiie 
c.tptain of the port came up to lieutenant Platt, and demanded of 
him his register. lie replied, I told you and I tell you again, m\ 
vessel carries no register. He appeared very angry, and said he. 
would detain us, until he heard from St. Johns: lieutenant IMatt 
then attempted to leave them. The Alcalde took him by the arm 
and said he must consider hinjselfa prisoner. He asked him why 
he was detained as a prisoner ; the captain of the port replied, you 
are nothing but a pirate. I began to walk to and fro, and he or- 
dered me into the same room where lieutenant Platt was; and he 
said if we were not satisfied with that, he would order us to (he 
king's house. Just at that moment, a gentleman came up and ac- 
costed me by name. His name is Cratt; he is a planter in the 



28 

island. He asked me \\lia( my diiTaiiUy was, and I told him. 
He turned round to the captain of the port, told him who I was, 
that he had seen me at St. Johns at tlie funeral of lieutenant 
Cocke, and he knew me to be an oHicer in the navy. The captain 
of (he port appeared very angry, was walking about, and swearing 
in Spanisl). Lieutenant Piatt asked him, if he would allow me or 
any gentleman present to go on board his vessel and get his com- 
riiission — he said, no, he would send us to the city — St. Jolins. 
The gentleman, who acted as interpreter, and had been the Al- 
calde before, offered himself to go; he objected to that; and al- 
lowed Mr. Bedford, (the clerk of Mr. Cabol.^ and Mr. Campus, 
to go. They brouglit both our uniform coats ashore, and lieuten- 
ant Piatt's commission. The commission was read to him by the 
interpreter. He threvv it on the table, said it was a forgery, that 
there was no lieutenant conjmandant in it. The captain of the 
port then became very abusive, walked about, and ! could frec|uently 
hear him talk of commodore Porter and the officers. I tiien at- 
tempted to come out of the door, and tw o n-t^groes who stood there 
with cutlasses or<Iered me back. Some conversation took place 
between the captain of the port, the Alcalde and the interpreter, 
in the back part of the room, but I could not understand what was 
said. 

The interpreter then came forward, and asked lieutenant Piatt 
whether he had any thing to show that he was lieutenant conj- 
mandant, for that the captain of the Port, as he said, was so igno- 
rant, that he could not beat it into his head. He said he had his 
appointment from c()mmodore Porter, which he could shew them, 
his orders to take commnnd of th.e vessel. Mr. Catnpus, in the 
mean while, had brought ho;ses There, and told lieutenant Piatt 
he might probably get the goods at a small town ab^ut twenty 
miles ofl", the name of which is Na<iuaba. Lieutenant Piatt de- 
clined going, anil sent Mr. Bedford, and Mr. Campus, on board 
for all his papers. It was some time before they returned with the 
papers ; and we were kept in the mean time guarded in the room 
bv the negroes. When they returned with the papers, lieutenant 
J^latt sliewed the captain of the Port his orders. The captain of 
the i*ort did not appear satisfied with the papers, until the inter- 
preter and Mr. Craft told him they knew it to be commodore Por- 
ter's signature, that they had seen it before. At tliis time a num- 
ber of citizens had met in the room together; a long consultation 
took place between the Alciilde, the captain of the i*ort, and the 
citizens. Mr. Craft, and the interpreter, who appeared very warm 
in our favour, told thorn t!ie impiopriety of their conduct in de- 
taining us. They at hist agreed, alxmt sun set, to let us return 
to our vessel. We proceeded towards the vessel, and, at tlie out- 
skirts of the town, we saw some black;Mi,U(ls, who laughed at us. 
We took no notice of them, l)ut passed on, j^ot on bisard the schoon- 
er about seven or eight o'clock, and made the best of «»ur way to 
St. TImmas. 

We told the captain of the Port, wlnlo ho had us detained, that 
commodore Porter w'as coming out, and we sho\Md acquaint hiu) 
with our treatment. Neither the Alcalde, nor the captain of the 



29 

Port, had any utiiforni on ; I asked them whj the)' had no uniform 
on ? they said it was none of my business. 

On the moining of the fourteenth November we arrived in the 
harbour of Foxardo, under tlie command of commodore Porter. 
Standing in, the commodore hailed lieutenant Piatt, and told him 
to stand in, and cover, with his schooner, the landing of the troops. 
We did so, and had every thing clear for action. After the men 
from the Grampus, and the boats had landed, the commodore, in 
passing by, ordered lieutenant Piatt to come on shore. I landed 
with Mr. Piatt ; the troops were then ordered to march. Before 
}ve got on shore, lieutenant Crabb had marched with the marines, 
and Mr. Stribling had gone with the flag. Mr. Pendergrast, and. 
the party who had spiked the guns on tlie hill, just joined us. Wc 
ail marched oft", leaving Mr. Barton, with a party of marines, to 
guard the boats. On our passing two guns, about a quarter of a 
mile from the beach, the commodore directed Mr. Peudeigrast to 
spike them, which was done. On our arrival near the town, I ob- 
served lieutenant Crabb, with the marines, stationed about four 
or five, hundred yards from a field piece, at the entrance of tiie 
town. The commodore then ordered the men to halt, about one 
hundred yards from Mr. Crabb. After we had been there ten or 
fifteen minutes, I observed Mr. Stribling, with t!ie flag, coming 
down, with the Alcalde and the captain of the Port. VVhen they 
arrived, the commodore requested all the officers to assemble to- 
gether under a tree. The commodore told the Alcalde the object 
of his visit; that he must make an apolog}^ to lieutenant Piatt for 
his treatment, satisfactory to the oflicers round. He did apolo- 
gize. The commodore told hin>, that should any officer hereafter 
land there, he must treat him with every respect that was due to 
him. The commodore then shook hands with both of then) ; they 
gave him an invitation to go into the town. The commodore ask- 
ed if there were any refreshments, he wished some for his men. 
I pointed out a uKin with whom we had breakfasted, who said he 
would furnish licjuor. The commodore walked into the edge of 
tiie town with the AlcaUIe and the captain of the Port He then 
wished them good by, and s.iid he should march his men down to 
the beach, where they could get refreshments. I believe I was 
the last man out of the town. Mr. Campus came up, and asked 
me if 1 would carry a letter from him to Mr. Bergeest, at Sf- 
Thnmas. 1 said }es, provided it would not detain me. I asked 
hin) i( he had heard any thing of the stolen goods; he said he had 
not, though he had made evciy inquiry. He went for the letter, 
but not returning soon enough, I proceedid to the beacli. On uiy 
return I found the houses that had been deserted, as we went up, 
had their inhabitants in them ; they took oft' their hats to me as 1 
passed, and gave me some water to drink. I got down just as 
the men did with the liquor; it was paid for, and we went oft". 
Several persons on the beach, on our return, otfered us cocoa nuts. 

(Interrogated by the Judge Advocate.) 
Q. When you arrived on the tirst occasion, in the harbour of 
Foxarilo, and while you remained there, were your colors fl\ing 
on hoard tin- BnriirlHp 



30 

^9. When we arrived it w;is just at sun set; the colors were 
(hen flying, and, as we landed, Mr. Piatt oidered them to be 
hoisted at nine o'clock. 

Q. Do yo\x think that M'hen you landed tlie character of the 
vessel was known to the people on siiOie? 

A. I think so; for a n»an who had cftnie oft' to us, had, by this 
time, landed ; and, I presume, had acquainted them with our char- 
acter. 

Q. Was there any interruption off'ered to you on the beach when 
you landed ? 

,.i. Only by the man that I before mentioned ; who had a sword 
in his hand, and his head tied up. 

Q- Was your character announced to the people on the beach? 

.2. Yes. 

Q. Was it known to all with whom you spoke, that you were 
American officers? 

J. Yes. 

Q. What was the object in landing without your uniforms r 

.3. We thought it would increase our prospect of success, jf it 
was not known who we were. 

Q. Why then did you announce who you we;e ? 

^. We announced it to the authoiities as we had intended, and 
to the man on the beach ; we knew we could get up to the town 
before him. 

Q. Did lieutenant Piatt, and yourself, examine any of the goods 
in any of the retail stores in the town, or make any inquiries tl»ere 
as to the goods F 

.//. No ; we had asked permission of the Alcalde to do so, and 
it was refused us. 

Q. Did either of you go into any of the stores? 

./?. No; the man who kept the public house had a store, but we 
did not go in ; and we just entered Mr. Campus's, but did not ex- 
amine any of the goods. 

Q. What was the treatment you received from the inhabitants 
of Foxardo, besides the Alcalde and the captain of the Port? 

»:?. We received from four or fiveffgendemen theie very kind 
Iroattnent. but from the lower classes our treatment was rough. 

Q. Did those who were rough in their behaviour, appear to know 
who you were ? 

A. I do not know. Mr. Craft mentioned to persons in the house 
<}f the Alcalde, and round tiie door, win* we were. 

Q. Did they carry you, or order you to (he jail? 

.1. riicy ordered nie, and tlie Alcalde took Mr. Piatt and led 
him into a room in his house ; and they also sp)»ke ol sending us 
10 the king's house. Tlie room, in which we were kept, was oc- 
'lapied as a stable ; the front room was occupied by (he Alcalde as 
his ollice. On reflection, I recollect that Mr. Piatt, accompanied 
by tlie two negroes, was ordeied to the jiiil, which was ahout fifty 
yards from tlie Alcalde's liouse. 1 did nut accompany him ; he 
was absent only a few moments. 

Q. Did you, at the time, attribute the conduct of the captain of 
the t*ort, and the Alcalde, to their ignorance of your characters; 
or to a wish to in»i()t tho American nag, in your persons ? 



j2. 1 tliought, at the time, they wished to insult us : I afterwanis 
understood that they were bribed by Mr. Campus to do it. I had 
no idea they -were ignorant of our character. 

Q. When you were released, were you ordered to go on board 
your vessel with any insulting language ? 

A. Not by any body else than those I have spoken of at the out- 
skirts of the town. At leaving the captain of the Port, I told him 
tiie commodore would pay hirn a vTsit shortly; he shook his cane 
at nie, and said something in Spanish, which 1 thought from his 
manner was abuse. 

Q. When the Grampus and Beagle entered, and anchored in 
the harbour of Foxardo, were their colors flying, and were they 
prepared for action? 

J. Yes; the commodore's broad pendant was flying on board 
the Grampus; the flags were flying on board the Beagle, and the 
boats, and all were ready for action. 

Q. Where did the Grampus anchor? 

./i. The Grampus ancliored abreast of the battery on the hill. 

Q. Did you see any preparations making in that battery to fire 
on you, and how soon after anchoring? 

j. As we were standing in I saw a number of men standing in 
the battery on the hill, a company to each gun, and 1 thought thej 
were preparing for action. 

(Cross examined, on the part of the accused.) 

Q. Did you not find, on your first visit at Foxardo, some per- 
son or persons, in searcli of property stolen from other islands 
besides St, Thmiias? 

Jl. Ves. 

Q. Had you any doubt, at the time of your detention at Foxar- 
do, that they all perfectly knew the real character of yourselves 
and v«>^sel ? 

Jl. I had no duubt of it. 

Q. From information since obtained, what do you believe to 
have been the real object of the persons who caused your deten* 
tion ? 

.9. 1 thoughtatthetime theobjectwastoinsultus: Ihavereceived 
information which has induced me to believe that Mr. Campus, at 
that time, had the goods in his possession, and that he had bribed 
the Alcalde, and the captain of the Pot t, to act towards us as they 
did. 

Q. Before my visit to Foxardo, and at the time 1 proceeded 
from St. Thomas, on the expedition to Foxardo, was that place, 
and the district around, notorious as the haunt and refuge of pi- 
rates ? 

.fi. Yes; I have understood, from good t^uthority, that they plun- 
dered, not only on the high seas, but on the shore. 

Q. Was the general oj)lnion of the oHicors, and of other persons 
interested in the suppression of piracy, decidedly in favour of my 
expedition to Foxardo: and was it not generally anticipated, and 
thought proper, after the insult to lieutenant Piatt? 

.9. Yes. 



32 

(^. Were tlie practical ellect and consequences, of my opera- 
tions at Foxurtlo, found to be highly beneficial and useful ; and was 
tlie uieasure applauded, even in Spanish towns, and Porto Rico 
itself? 

.4. Yes ; particularly at Ponce, and Aguadilla, where I after- 
wards was, 

Horatio N. Cr.miu, a lieutenant in tlie marine corp^ of the 
United States, being duly sworn according to law, deposes and. 
says— • 

I was on board the John Adams as commanding officer of the 
guard. On our arrival at vSt. Thomas, we heard of an outrage that 
had been committed, by the authorities at Foxardo, upon the per- 
sons of lieutenants Flatt and Ritchie. Wc proceeded lioni St. 
Thomas, for the purpose, as I understood, of obtaining satisfaction 
for the insult. The scliooners Granipus and Beagle were in com- 
pany, and we anchored with the ship off Passage island. The boats 
of tlie ship, and ihe men to be taken from her, were got in readi- 
ness for service. We left the Adams about sun set on the even- 
ing of the 13th of November, proceeded on board the schooners, 
and, on the morning <>f the 14th, between seven and eiglit o'clock, 
anchored in the harljuur of Foxardo. The first boat thai ielt the 
Grampus was under charge of lieutenant Pendergrast, accompa- 
nied by lieutenant Barton, of tlie marine corps, with the marines 
of the Grampus, thirteen or fourteen in number. I do not know 
the orders that Mr. Pendergrast received : 1 saw him take posses- 
sion of the battery, before the rest of the boats had landed, with- 
out any opposition. About nine o'clock all the men had landed; 
we were formed in line on the beach. I received a message from 
commodore Porter, stating that he wished to see me. I repaired 
to the place where he was standing, and received orders from him 
to form my gu;ir(l — look for the ri»ad to the town — proceed, and 
t-ake up a favourable p'lsition to cover the advance of the main bo- 
dy. I found the road without difficulty, inarched my guard off, 
consisting of two sergeants, two corporals, and twenty privates. 
I had also with me from the ship, a boy, who is tlie marine drum- 
mer; a master-at-arms of the Jolin Adam«, and a drummer from 
the Grampus; the whole, including nivself, amounting to twenty- 
eight persons. At the distance of about half a mile from the beach, 
there were two long nine-pounders mounted on a platform, in the 
middle of the roail. I hi.lted the men to examine whetlier they 
were charged or not; and fiiund they were not : I, at thes;nne time, 
took off" the aprons, and threw them on the ground, after which 
I continued my n)arch towards the town. When about half way 
between the beach and the town, I observed a small number of per- 
sons followinjj me with a white flaj;, N^t conceiviuir that I was 
under the necessity of waiting for them, until I discovered lieu- 
tejiant Stribling to be one of tlie persons accompanying the tlag, 
I proceeded on the road. At tliis time I vvas within sight of the 
town, approaching a position where [ had contemplated halting 
to await his arrival. 1 hil ed uprn that ground until he came up; 
and, in reply to some observations from him, I told him I would 



33 

escort him into the place. Tie replied, very well. I suffered iiiiu 
to get in advance of me twenty or thirty yards, when 1 put the 
men in motion, and followed him at a slow pace. I observed some 
movements among the .Spaniards, which i thouglit indicated hos- 
tility on their part. When lieutenant Stribling came up with 
me, there was a wliite flag held by the Spaniards at the entrance 
of the tow?i. They cauie out to meet him. I was at ihe time 
marching on slowly in his rear; when the flags met, I saw three 
or four Spaniards kneel, and present their muskets. I had deter- 
mined to push on at quick step, and render him assistance, if it 
was necessary. I, however, received a message from him request- 
ing me to halt, until his return from the town. At this time, 1 was 
from 150 to 300 yardsof the town. Comm. Porter ai rived, short- 
ly after lieutenant Stribling left me to go into the town, and halt- 
ed some distance in the rear of the marines. Me came up to the 
ground I occupied, and directed me to place my men in a position 
to face the Spaniards, which I did. 

The couit, not being able to complete the examination of licu- 
lenancCrabb, adjourned till to-morrow, at ten o'clock. 

TUESDAY, July 12. 

The court met, pursuant to the adjournment ot yesterday, pre- 
sent, all the meiisbers of the court, (except captain Wadsworth, 
who still continues too much indisposed to attend,) the judge ad- 
vocate, and captain Porter. 

The minutes of the proceedings of yesterday were read. The 
examination of lieutenant ('rabb was resumed as follows : 

A short time after, lieutenant Stribling was observed returning, 
accoiupanied by the Alcalde, and some other persons from the 
place. I was directeil by commodore Porter to occupy a position 
on both sides of the road, and to sufl'er none to pass, excepting those 
who were in immediate attendance on the flag. Those instruc- 
tions were obeyed. The commodore returned to where the ofli- 
cers were assembled, and (here received the Alcalde. I do not 
know what occurred there, being at too great a distance to hear 
what was said : after a short conversatioii between the commodore 
and the Alcalde, I observed them approaching me. The commo- 
dore, as he passed, directed me to follow him with the marines to 
the town; stating, at the time, that he had received an invitation 
for himself, his officers, and men, to partake of some refreshments 
after their inarch. We entered the out-skirts of the place. I then 
had an opportunity of seeing the number of Spaniards drawn up, 
which amounted to about three times the number of the n\arine 
guard. They appeared to be militia, and with muskets. There 
was also anotlier party on horseback, armed with swords, and a 
small nun)ber v/ith a field piece, which 1 presumed to be a six- 
pounder. After some conveisation between the commodore and 
the Alcalde, the former stated, that if refreshments were sent to 
the beach, they should be paid for ; at the same time stating to mp, 
that he did not wish to bring all the men into the place, as he was 
afraid some excesses might be committed, which would put au end 



to the peaceable settlement of the business. Commodore Porter 
thi-n parted uiili (he Alialile, as I th(iu<;ht, upon friendly terms, 
left the place accompanied by his ufticers, and returned to the 
beach. I omitted to mention, that when 1 first received my in- 
structions from cimimodore Porter, I had particular ordei s not to 
sorter my men to commit an^ outrages upon the property of the 
inhabitants alons; the road ; nor to commit any acts ot hostility n.y- 
self, unless 1 met with resistance. On our return to the beach, 
I brou}{ht the rear with the marines ; we received tl>e lefreshmeiits, 
after which we embarked and went on board the schooners, and 
proceeded to the .lohn Adams. 

\ number of the inhabitants accompanied us to the beach : the 
persons who brous^ht the refreshments refused to receive payment 
lor them. 

I/ieutenant Ritchie produced again — 

(^. (Bv capt. Porter.) Did Mr. Campus give any reason for ad- 
vising lieutenant Piatt, and you, to go to rsaguaba, in search of the 
goods; such, as its being a noted piratical establishn)ent, &c.? 

.4. He said it had been noted as a place of deposite for stolen 
goods, and that he had once before found goods there which had 
been stolen. 

Q. (By the same.) Are you acquainted with the situation of 
Naguaba, and Boca did Inferno, on the coast of Porti> Rico; and 
how far are they respectively from Foxardo and Ponce? 

Jl. Naguaba is about twenty miles from Foxardo, and Boca del 
Inferno about fifteen miles from Ponce, between Naguaba and 
Ponce. 

f ({. (By the same.) Were those places [Boca del Inferno, and 
Naguaba.l also notorious as piratical haunts? 

.3. Both. 

Thomas B. Barton, a lieutenant in the marine corps of the 
United States, being sworn according to law, deposes and says — 

I was on board the Grampus, as passenger, for Thompson's 
island. On the 14th of November last, about eight o'clock in the 
m(u-ning, the Grampus, and Beagle, with the boats of the Adams, 
entered the liarbour of Foxardo. The Grampus came to anchor 
opposite a two gun battery, ut which time I could plainly perceive 
fifteen or twenty persons in the battery, loading the guns, and 
training them towards the Grampus. I immediately afteiwards 
received orders to proceed in the launch with lieutenant Pender- 
grast, first of the Grampus, with fourteen marines, the guard of 
the Grampus. Lieutenant Pendergrast receiveil orders fiom com- 
modore Porter to proceed in the direction of the two gun battery, 
with as little hrzard as possible, and take the fort, spike the guns, 
and destroy the ammunition. We pulled oft' from the Grampus 
about half past eight or nitie o'clock. 

The peoi)le in the fort were, at this time, endeavouring to get 
the guns of the fort to bear upon the launch. The course of the 
boat was altered, which prevented tht-m from bringing the guns 
to bear upon us. T'ley p.iotioned with their hands for us not to 
proceed. We succeeded iu reaching the rear of the fort, and land- 



35 

id ; and then in reaching the fort, situated about eighty feet above 
tlie level ol tlic ocean. Just at thr edge ol the fort we Siiw about 
three or four Spaniards, the rest liad tuti. We inunediately spiked 
the {i,uiis, and destroyed tlie ammunition, coiisihtinjj; of one round 
sliut, one cliarge of powder, and a canister of small grape, musket 
balls, and spikes. One gun was charged, the other about half load- 
ed ; it had powder and ball, but the canister was not in it: both 
of tliem primed, and eacli having a lighted match alongside. 

Agreeably to our orders, we immediately proceeded down to 
the beach ; followed the motions of commodote Porter, who had 
iirsl landed with the troops and sailors on the beach, near the road 
leading to the town of Foxardo. On oui arrival on the beach, com- 
modore Porter ordered me to remain in the rear to protect the 
boats at the landing; I had from twenty to twenty-live men, in- 
cluding marines and sailors. 1 wa;^ particularly ordered not to 
suft'er a single person under my command to commit depiedations 
on persons or property, liie troops under the couimodore, a short 
time after, marched otton the road leading to the town of Foxar- 
do. After an absence of about from two to four hours, the main 
body returned ; after receiving some refreshments on the beach, 
we were ordered to re-embark for the Grauij'us and Beagle. — 
Whilst on our way to the vessels,! could iliscover eight or ten men 
in the fort endeavt)uring to draw the spikes out of the guns, but 
they could not succeed. We got on board, and proceeded imme- 
diately out of the harbour. 

(Interrogated hij the Judge Mvocate.) 

Q. At what time was lieutenant Stribling despatched with the 
flag of truce ? 

.i. I do not know. I believe that when we landed on the beach, 
both he and lieutenant Crabb were on their way towards the town. 

(^. Were the Spaniards whom you saw in the battery ariued ? 

Ji. They had no small arms, 1 believe. 

Elxathan Jl'uson, a surgeon in the navy of the United States, 
being duly sworn according to law, deposes and says — 

({. [By capt. Porter.] Do you recollect a conversatitm, between 
Mr. Plait and myself, when we lirst landed at the harbour of Kox- 
ardo, respecting the omission ol Mr. Piatt to bring Mr. Jiedford 
on sliore, and my reply to his apology for the omission, that wc 
must lirst ituiuire for the goods, and, if found, we > 'ight send for 
Mr. Beilford to identify them ; or any thing to that eiiect? 

Jl. I recollect a conversation to that eft'ect. 
Lieutenant Pi. ait again called — 

({. [By capt. Porter.] Have you any recollection of asking the 
interpreter, in the presence of the Alcalde, and myself, whether 
the goods, you lirst came in search of, had been found, and what 
was his answer ? 

J. 1 recollect perfectly well of asking the question. It was af- 
ter the commodore had been invited up to the village. He told 
me he was not aware of any discovery having been made. I was, 
at the time, in company with the cimimodore, within his hearing. 

The court adjourned till ten o'clock to-morrow morning. 



36 
WEDNESDAY, July 13. - 

The court met, pursuant to the adjournment of yesterday, pre- 
sent, all die members ot" the court, ilie judge advocate, and cap- 
tain Porter. 

The pioceedings of yesterday were read. The judge advocate 
then read, and submitted to the couvt, the following documents: 

Instructions from the Secretary of the Navy, to commodore Por- 
ter, dated February the 1st, 1823. 

C«»mmod<>re Foiter's letter to the Secretary of the Navy, dated 
November 15, 1824. 

Lieutenant Piatt's letter to commodore Porter, dated Novem- 
ber 11, 1824. 

Stephen Cabot's letter to commodore Porter, dated November 
12, 1824. 

l:urgeest and Whonn's letter to commodore Porter, dated No- 
vember 11, 1824. 

The judge advocate stated, that he had no further evidence 
to lay before the court, in support of the first charge, and 
specification under it. Whereupon, the counsel of commodore 
Porter submitted to the court his exceptions to the second charge, 
and its specifications, as follows: 

"The counsel of commodore Porter suggests, that the second 
charge, and what purports to be the five specifications of the facts 
and circumstances, intended to be proved in support of such charge, 
ase altogether insufficient to put the accused to answer, orto^ive 
this court jurisdiction to try any matter therein alleged. ' 

I he following objections to the same, are deemed unanswera- 
ble, and fatal : 

1. I'he principal charge itself describes no oifence, within the 
terms of aiiy of the naval articles of war, by which all the milita- 
ry crimes and punishn ents, alVecting officers of the navy, are enu- 
merated, anil defined: and is altogether vague and uncertain, as 
to the nature arid degree of the ottence intended to be charged. 

2. The specifications are not conceived in terms, any more ap- 
propriate or precise, to constitute any oftence known to the naval 
codr established by such articles. 

3. Even if any such ofi'ciice could be inferred, either subsfan- 
tively from the charge itself, or from the charge and specifications, 
collectively, still the specifications arc altogether vague, indefi- 
nite, and uncertain, as to the facts, circumstances, and criminal 
intents, to be adduced and proved in su{)port of the principal 
charge. 

4. The specifications do not follow and supporf, but are a de- 
parture from the grctvaven of the principal charge: and (if con- 
ceived in terms, tending to any sensible and legal conclusion,) 
constitute separate and ilistinct charires, not necessarily compre- 
hendt'd in the terms of the principal charge. 

II the learned judge aovocate sliould conceive that this charge, 
and the several sjiecifications of the same, are susceptible of being- 
justified and .-uppoited, the courisel of commotlore Porter would 
very respectfully ask for au opportunity to corroborate his objec- 



37 

tions, by authority ; and to reply to any reasons that may be ad- 
vanced, on the part of the prosecution, la answer to such objec- 
tions. 

Julii 15, 1825." , ^ . , .^ ij 

After mature deliberation, the court determined it would re- 
ceive any communication from the counsel of captain Porter, m 
suDport^f the exceptions which he had taken to the second charge-, 
and the specifications thereof. But, that all such communications 
must be submitted in writing: the court also wishes that the same 
be presented with as little delay as possible ; and, after receiving 
them, the court will proceed to deliberate upon the same. 

The court being opened, the foregoing resolution ot the court 
was announced to the accused. ,. , ^ ,. ,-,, ^ 

The counsel for the accused then applied for time till to-moi- 
row morning. Whereupon the court adjourned till to-morrow 
morning at ten o'clock. 

THURSDAY, July 14. 

The court met, pursuant to the adjournment of yesterday; pre- 
sent, all the members of the court, the judge advocate, and cap- 
tain Porter. . . i r- 

The minutes of the proceedings of yesterday were read. Lap- 
tain Porter handed to the court a letter from Mr. Jones, his coun- 
sel, stating that a severe indisposition would prevent hun trom at- 
tending before the court to-day. Captain Porter requested the 
further indulgence of the court till to-morrow. ^Whereupon the 
court adjourned till to-morrow morning at ten o'clock. 

FRIDAY, Juli/ 15. 

The court met. pursuant to the adjournment of yesterday; pre- 
sent, all the members of the court, the judge advocate, and captaiiJ 

Porter. , 

The minutes of the proceedings of yesterday were reau. 
The counsel of captain Porter then proceeded to lay before the 
court the objections to the second charge, and the specihcations 
thereof; which, he staled, had been drawn up with great haste. 
and while labouring under great indisposition ; and would re- 
quire to be fairly transcribed, before the paper could be anno: ed 
to the record. This he promised to have done, and to transmit 
the paper to the judge advocate. ^ . 

The court was cleaied, and having come to the resolution that 
it could not act upon the paper read by the counsel, until it was 
kid before the court, it would take no order on the subject until 

that was done. , ^-n * i 

Whereupon the court was opened, and adjourned till twelve 

o'clock to-morrow. 



38 

Saturday, juiy i6. 

The court met, pursuant to tlie adjournment of yester.lay; and, 
at four o'clock, the counsel for captain Porter presented the paper 
wtiich contained the objections read yesteiday ; and the court ad- 
jouiiied till ten oxlfcck on Monday inorniog. 

MONDAY, Juhj 18. 

The court met pursuant to the a<ljournment of Saturday; pre- 
sent al. tlie tneujoers, the jnd^e advocate and captain Porter. The 
minutes of the proceedings of Saturday were read. The paper 
subinitted to the court on Saturday, was read by the counsel for 
captain Porter ; and annexed to the record. After heann-^ the 
saaii- the court was cleared, and it was determined that tlie court 
vould receive the remarks, which the judge advocate had been 
requested to prepare, with open doois, and would then proceed 
to deliberate upua tlie questions that had been raised. 

The court bei.ig opened and the foregoing resolution announced, 
the j.jdge advocate proceeded to read iiis reply to the objections 
that ha.i been urged on behalf of the accused, which was annexed 
to toe record.* Whereup -n, the court was cleared, and after 
some time spent in deliberation, the court was opened and the 
lullovving resolution announced. 

;' iiie counsel f(ir cuptaui Porter, after pleading generally not 
guilty, under protest, and reserving a riglit, at any future stage of 
the tnai, to take exceptions to the form and validity of the chaig- 
es and specifications, or any of them ; has now excepted to the lA 
chirgeand the specifications thereof; m-Msting that the same are 
d.K;cUve m form, and (hat the facts, therein set forth, do not 
constitute any military ofience, of which a court-martial can take 
cognizance. It being a matter of doubt, amoiiir some of the mem- 
bers ot the court, and of the judge advocate, 'wiietlier a decision 
UiJonthis question would necessarily involve a final decision of 
the case; ...nd preclude the accused from proceeding, under the 
ple.j of not guilty, to offer any evidence in the case; and should 
the court decide that it can take co-nizance of the char-e, &c. it 
King higi.iy desirable that the whole case should he fully inves- 
tigated ;— the court is desirous of obtaining the opinion of the at- 
torney general upon the following questions: 1st,, whether the 
second charge and the specifications thereof, are drawn up with 
suthcieut precision, and in legal form ; and whether the facts there- 
in set lorth, do allege otrtuces coguizuble before a court martial .f> 
2d, whetlierthe dtcision of the court upon the exceptions taken 
necessarily preclude the court Irom calling upon the accused to 
plead absolutely to the said charge ami specifications, and pro- 
ceeding to trial thereon; or whether such decision will be final, 
notwithstanding a waiver by the judge advocate of such conse- 
quence P—and that the same be transmitted to the Secretary of 

* Note.— The respective arg-umeiits, in support of, and in answer to, these 
objections, are placed immediately iirecedii.K- .-.(.innuxlore Porter's s;-eneral d"- 
leilcc ; m order to give u couutcted view ot the w hole ,sul>jcct 



39 

the Navy, with a request that he submit tlie same to the attorney- 
geiuMdl of the Uuited States, for his opinion tiiereon. 

" Couunodore Porter, having heard tlie order of the court, re- 
ferring certain questions to the attorney-general, would renew the 
application, suggested the other day by his counsel, to reply, ia 
writing, to tlie answer of the judge advocate to his olijections, 
at^ainst the second charge and the specifications of the same; if 
the questions are to t»e submitted to the attorney-general accom- 
panied by the arguments that have been submitted to this court, 
on both sides of the questi >n." 

The court was cleared lo deliberate upon the application, and 
after some tiuie, the court «as opened, and captain Porter was 
informed that the court had decided not t« receive any rejoinder. 

The court thereupon adjourned till two o'clock to-moriow. 

TUESDAY, July 19. 

The court met pursuant to the adjournment of yesterday ; pre- 
sent all the members of the court, the judge advocate and cap^ 
tain Porter. The proceedings of yesterday' were read. Thejudge 
advocate stated to the court, that he had communicated to the 
Secretary of the Navy the resolution of the court on yesterday, 
with the questions annexed to the same, and that he had just re- 
ceived from the Secretary of the Navy, certain documents, which 
were read, annexed to the record and mai ked. * 

After reading the same, captain Porter stated to the court, that, 
with a view of preventing any unnecessaiy trouble (tr difficulties, 
he would withdraw the exceptions, that had been urged on his be- 
half to the 2d charge and specifications ; which, with the permis- 
sion of the court, should be done to morrow in writing; and that 
he would then state the considerations by which he was guided. 
To this proposition the court acceded. VVhereupon, the court ad- 
journed till ten o'clock to-morrow morning. 

WEDNESDAY, July 20. 

The court met pursuant to the adjournment of yesterday; pre- 
sent all the members of the court, thejudge advocate and captain 
Porter. The proceedings of yesterday were read. 

Captain Porter stated to the court, that he, being very much 
indisposed, would ask permission of the court, to read by his coun- 
sel, the paper to which he had referred yesterday ; to this the 
court acceded : and Mr. Jones, the counsel for captain Porter, 
commenced reading the same. While proceeding to read it, the 

* NoTK,^ — These dommmis consisted of a coiTmunication from the Secre- 
tary of the Navy, g-ivhig the result of the application to the attorney-gciicrul. 
That officer clcclined tlie giving of any opinion on the question ; in as niitcli 
as the law by which the duties of his cftice wore prescribed, made it his duty 
, " to give his tidvice and opinion ii])on qnestions of law, when required by the 
President of the United States, or w'.ien r (luestcd by the Meads of the Depart- 
ments, touching any matters that may concern their d^^partnients :" and he 
did not consider anv question, judicially arising hc^fore a comt-niartial, as cm- 
braced hi these terms. \\c regret tiiat it is not in our power to give the attor- 
ney-general's reasons, in his own language. 



40 

jud^e advocate stated that he considered a part of the paper as ob- 
jectionable, in as much as it was a conmient upon the reply read 
by him, to the exceptions which had been taken to the charge and 
Specifications; and to which the court had already announced its 
determination to receive no rejoinder. Whereupon the court was 
cleared to deliberate upon the question, and after maturely ex- 
amining and considering the paper submitted, the court is of 
opinion, that all that part of the same commencing on the second 
page, with the words, " I beg leave further to state," and termi- 
nating at the bottom of the fourth page; and the passage com- 
mencing on the fifth page, with the words, " vvhether it may here- 
after," and terminating at the end of the first paragraph on the 
sixth page, is objectionable, on the ground stated ; and as not per- 
tinent to any matter or question now before the court for its con- 
sideration; and consequently cannot be received. Whereupon 
the court was opened^ and the foregoing proceedings read by the 
judge advocate. The counsel for captain Porter then proceeded 
to read to the court, the paper, as received by the court. 

Here follows the paper, precisely as it was originally produced, 
and in part read. The passages objected to by the judge advo- 
cate, and deemed inadmissible by the court, are the two in- 
cluded within brackets : 

Mr. President, 

Since the course, which has been taken with the exceptions, 
of my counsel to the terms of the 2d charge and its specifications, 
is likely to produce delay ; and, instead of simplifying, as was in- 
tended, rattier to perplex and embarrass the procedure of the 
court ; I have determined to withdraw these exceptions, in so far 
as they present any prg^ii/iiuary question to be discussed and de- 
cided, upon the face of the charge and specications themselves; 
independent of any examination into the evidence, to be adduced 
in support of them. 

I haver decided on this course, with the less hesitation, in con- 
sideration of being distinctly advised, by my counsel, thatall these 
exceptions are equally available, under the general issue of 
" not guilty," as in any other form : unless, that which turns upon 
the defect of sulTicient minuteness and precision in the specifica- 
tions of time, place, manner am.! circumstances of the acts imput- 
ed to me, may be an exception. ' Tis not that tlie latter objection, 
or the rule, vvhic!) it supposes to have been violated, is, by anv 
means, to be regardeil as frivolous or captious; or as unessential 
to the great principles of substantial justice, by which the salutary 
forms of procedure, in such cases, have been prescribed. On the 
contrary, [ am made experimentally sensible, in this very in- 
stance, of the value of the rule, and of the practical mischief and 
injustice resulting from the palpable breach of it, apparent on the 
face ot my pending accusation : i'or I solemnly declare that, after 
the minutest recollection and the most mature reflection, upon all 
the passages of my professicmal life, Vv hich, by any possibility, may 
be the subject of this complaint, and after all that has been said 
in the recent discussiou, I remain, at this moment, utterly pec- 



41 

plexed, puzzled, even to conjecture, what are the particular facts 
and circumstances of tny imputed guilt, that are pointed at, and 
intended to be adduced against nie, under several of the most im- 
portant of tliesefive specifications : and that, as to the rest, (with 
one single exception,)* 1 am unable to do more than to form a 
prubable though vague conjecture. Yet, so long as I am assured 
that I am not to be entrapped, by taking issue upon the charge, 
to 1)0 iield to a conclusive y.dnussion of its validity, or of the legal 
surticiency of the facts to be given in evidence nnder it, as de- 
scribing or constituting any oilence, for which I am amenable to 
nianial law, 1 must be content to forego (if such be the necessary 
consequence of pleading to issue) every advantage from the defect 
of reasonable certainty and minuteness, in the specifications ; and^ 
to encounter every disadvantage of ignorance, from the want ot 
fair and regular notice of the circumstances wherein my offence 
is supposed to consist. 

[I beg leave, further, to state, that there are not wanting addi- 
tional reasons to determine me to this course, of abandoning the 
preliminarii stand, taken by my counsel against the charge and 
specifications in question. I have listened attentively to the long 
and elaborate essay of the judge advocate, professing to be a vin- 
dication of the chari:;e and specitications, against the objections ot 
my counsel : in which it was to be expected, if he deemed the ob- 
jections susceptible of a satisfactory answer, that he would have 
met the ar;ruinent, upon principle; and, without sparing any de- 
lect of conclusiveness or pertinency, which could be detected, in 
the reasons or authorities advanced by my counsel, that he would 
have fully and freely expounded what he conceived to be the ge- 
nuine rule of law, applicable to the case. But he has thought pro- 
per to depart from this simple and direct course, in order to in- 
troduce certain collateral topics, and to advert to certain extrane- 
ous circumstances, which, if ever so correctly cited and candidly 
commented on, had no possible connection with the argument, by 
which the validity of my objections, in point of law, was to be de- 
termined : any iurther, than as the merits of an argument may be 
disparaged, by the personal prejudices, which were the evident 
end ^nd aim of the iritroduction of their topics. But all the facts 
and circumstances, upon wliich this argumentum ad /lomi He ?m pro- 
ceeded, are, as 1 shall demonstrate, the result of the most extra- 
ordinary misapprehensions of the passages of current events, to 
which they referred, and of the true and apparent motives by 
which I have been actuated, in the course of the pending inves- 
tigation : such misapprehensions, indeed, as I, in my simplicity, 
sliould have been surprised to witness in the most thorough-going 
and vehement of retained advocates, engaged in one of those in- 
flamed controversies, which arc so apt to discolor the perceptions, 
and wurp the judgment both of parties and advocates. That they 
should have found place in a discussion, conducted by an officer, 
who is presumed to hold the middle ground ofa prosecutor, bound 
to bring foivvard fairly and fearlessly, whatsoever of law or fact, 

♦ NoTK. — The exception here alluded to. is tke second specification ef tliie 
sei-,oiid charj^e. \]4. ante, p. 7. 
G. 



42 

ihay legitimately conduce to uphold the prosecution, upon the sim- 
ple and dispassionate principles of public justice; at tlie same 
time that he scrupulously abstains from ever)' t(jpic, calculated to 
mislead or inflame, — only makes it so much the more necessary 
that I sh(»uld discharge myself of tlie imputations, and disclaim 
the inferences, resulting from this official and recorded mis- 
construction of my conduct and motives. lam, besides, instruct- 
ed with the utmost confidence to conclude, that, upon several 
points, very material to my defence, the propositions of law laid 
down by the judge advocate, with the most unhesitating and un- 
qualified assurance of their accuracy, are clear aberrations from 
the soundest, best approved and plainest principles and prece- 
dents ot the law; and have been sustained by a misapplication of 
authorities, quite demonstrative to a professional lawyer : and that 
these aberrations are more particularly apparent in the new points 
of doctrine, raised by the jutlge advocate, in the course of his 
answer; and which had not, and, by no possibility, could have 
been anticipated and adverted to, in the opening argument of my 
counsel.] 

Since it appears that I am not entitled to reply to any of these 
topics,* in the discussion of a preliminary point; and since it is 

♦Note. — " These /cy)/c«." Query. What krpics ? Expiiiij^c from the text, the 
passag'es marked as sacrilegious intrusions, within the consccniteo precmcls of 
the olficii.! argument, and what follows is disconnetltd and unintelligible. 
The /.'jrffx e.r/«m^«/t;?70M.<f, to be consistent and complete, should have toni- 
prthended no-, only the topio^, which had been recapitulated, as necessarv to 
be replied to, but all the direct allusions, the relative propositions and the co- 
rolla: ies. Till, mjst apprehensive tenderness watches overoflicial statements 
and urguaui'ts, to preserve t!>i.u color .ind glossy surface, unruffled b) the 
brvratii of opposition ; they must repose in self complacent security ; w hile the 
memoiial of the commodore is manned and mutilated, without any regard to 
the method or the consequences of the operation : in which a ctu'eful surgery 
mi^iit iu.ve compensated for the weakness of the process, tlie loss necessarily 
occasioned by it. liow this iiu morial infringed the decision of tiie court, 
against a reply to the oflicial argument, is far from obvious. The singular al- 
ternative IS presented to the accused, either to abandon his ])reliminary ex- 
ceptions ; and to postpone them to a ynme unseasonable period of the trial ; 
or to submit, in silence, to disparaging insinuations against his motives and 
conduct, brought forward in a discussion of mere questions of law. The me- 
morial does nothing more than to state tlie alternative, to which he is thus re- 
duced ; and to explain the necessity imposed upon him to reph' to certain 
topics: but it does not reply to them. Not one word is said in refutation of 
any matter, either of law or fact, advanced by the judge advocate. The com- 
modore IS permitted^ expressly to give his reasons for withchawing his prelimi- 
nary exceptions: and to give reasons growing out of the judge ad\ocate's 
answer. In assigning' such reasons, he recapitulates certain topics of law" and 
fact, fiom that answer, as imposing upon him a mnssify to reply : a necessity 
produced not merely by the extraordinary doclr'inf^ advanced, but by factif, 
bo h directly asserted, and intelligibly insinuated, — which it concerned his 
)u>nor to disavow. He complains tluit, impelled by this necessity, he must 
a'nandon his exceptions for tlie present : because if now persisted in, as pre~ 
l!n,:nary exceptions, they must necessarily be dcciOKl, before the opportunity 
could iHissilily be afforded, by his hnal deferce, to rejily ; — and then reply 
would be out of place, and ridiculous. By what rule this has been construed 
as an trcfurd reply, and, (.•onseqiiently, as an infringement of the court's iieg-a- 
tive upon a reply, was never explained. Upon what ground of reason or equi- 
ty he was debarred of his reply at this stage of the investigation ; and post- 
poned till any reply should have been out of season and comparatively usekssj 
will be examined hereafter. 



43 

Uiost unexpectedly intimated that doubts on the subject exist 
with the court; and as 1 feel that justice to myself '■equues, that 
I should have an opportunity of controverting whatever may have 
been advanced to effect either my honor, or the mere law of ray 
case, — I have taken the only course left open to me : which is to 
waive the exceptions, as matter of separate and preliminary ilis- 
cussion ; ami to reserve them, or such of them, as may be availa- 
ble for my general defence. 

[Whether it may, hereafter, be thought necessary to push the 
more recondite and technical rules of special pleading, peculiar 
to the practice of the courts of common laiVy and recognized in 
those tribunals, and in those only, to the extreme of contending 
that this court has nothing to do, under the general issue of not 
guilty, but to determine the truth or falsehood of certain noted 
allegations of fact; without deciding the question of their re- 
levancy to any article of the naval code ; so that, if the naked 
fact be true, it should follow, as of course, that it is an offence 
against that code ; as it has already been contended that a denial 
of the legal sulficiency of the charge, and of the specified facts, 
to describe or constitute any such oftence, is an in»plied and con- 
clusive admission of the truth of the fact; remains to be seen. I 
shall, nevertheless, abide the issue ; confiding in the equity and 
good sense of my judges, to shield not only myself, but the whole 
military and naval corps of the country, from the consequences 
of such a nice and artificial doctrine, as would construe a denial 
of the law, into a conclusive admission of tlie/zici/ or a denial of 
the fact into an admission, equally conclusive, of the law.'] 

1 do therefore, Mr. President, offer myself ready to go on with 
the trial of this 2d charge and its specifications, upon the general 
issue, before tendered under protest; reserving for my general 
defence all such exceptions, of law or fact, as shall be admissible 
and available in that defence. 

I beg leave, further to suggest, that it is essential to my defence, 
that 1 should be mote precisely and minutely informed of the pro- 
positions of fact or law, advanced against me, than I can be from 
a cursory reading of the long and elaborate argument of the judge 
advocate: nmny parts of which were but indistinctly heard and 
comprehended, in the course of that reading. 1 therefore request 
to be favored with a copy of that document as a part of the 
proceedings of the court; or such access to it as may 
be equivalent. I do not anticipate that there can be ob- 
jection to this request, since the reasonableness of it is so appar- 
ent. Al :h>>ugh the nature of my ol)jections was distinctly indicated 
on the second day of this court's session; and more specifically 
drawn out and stated in writing, as early as Wednesday, the IStli 
instant: and though the reasons and authorities at large, were 
distinctly read in open court, on Friday the 15th; yet, it seems, 
that because, (from some accident which I extremely regret, as it 
must have infinitely enhanced the labors of the judge advocate,) 
the fair transcript of the argument in support of the objections, 
was not put into his hands till 10 or 11 o'clock on Sunday, the 
irth, — he was compelled to defer the preparation of his argument, 
till he was in full possession of the written transcript of that 



44 

which he was to answer. If a gentleman, possessing tlie acute- 
ness and the quickness of perception, the learnino and ingenuity, 
united with the facility thus strongly manifested in the composi- 
tion of an argument, so full of iearueil research and various illus- 
tration, and so elaborate and dirt'iise, which occupied no longer 
time than from 10 or 11 o'clock on Sunday ni(»rning, till it was 
time to rtieet the c(turt, at ten the next morning;* if one so gifted 
labored under so much disadvantage from the absence of tlie pa- 
per he was to answer, you n)ay judge, Mr. President, how neces- 
sary it is for me to be possessed, in ea-tnisn, of the aiguments by 
which many important points of mv defence are so stroniily af- 
fected. • ^^ 

The judge advocate then read and submitted to the court, ti\e 
following documents, referred to in the first specificaliuu of tlie 
second charge. First, copy of a letter from captain Porter to the 
President of the United JStates, dated March 17th, 18-25. Certi- 
fied by the chief clerk of the Navy Department, to be a true copy 
from the original, tiled in that department. The counsel for the 
accused objected to the production of the certified copy of the 
letter to the President, and required the production of the origin- 
al, which, as he slated, appears to be in the Navy Department j 
he further stated that captain Porter believed that a variance ex- 
isted between the copy oHered and tlie original, as to the date. 
The court was cleared, and, aftersome timespent in deliberation, 
was re-opened, and the decision of the court was read, lliat the coj/y 
certified by the chief clerk of the department was not admissible 
in evidence.--Captain Porter then presented the lolluwing minute 
ot explanation. 

Captain Porter begs leave to explain, that his call for the ori- 
ginals, though founded on one of the most indispensable ruh.-s of 
evidence, which requires the best evidence the nature of tr.e case 
admits, was not intended to stop the readin;; of the copies, " dc 
bmeesse:'^ with an understanding and proviso, that the oiiginal, 
it extant, shall be produced: he observes some discrepancies be- 
tween the copies offered, and iiis own ; and, therefore, wishes that 
exact accuracy shall be attained by the production of the original; 
which, he understands, can be done, without any inconvenience, 
since they appear to be among the archives of the navy depailment. 
The judge advocate then called upon captain Porter to produce 
a certain correspondence, between himself and Mr. Monroe, late 
President of the United ^jtates, bearing date the lOlh and ]2fh 
days ot .March, 1825; being two notes from captain Porter of the 
aforesaid dates, to Mr. Monroe; and one note from Mr. Monroe, 
dated the 12th of iVIarch ; and such other note from Mr. Monroe, 

* Note.— -Tills refers to the exordium of the judsr-e advocatt-'s ars^iimcnt, 
in which he coiiiphiiiis, (if complaint it niav he called, when the- a^^^uInent 
IS so advantao-eously set ..«' by the quickness and lUciiitv with which it was 
elaborated and composed,) that the paper, containing- the" written notes of the 
reasons and authoaties, which he had lo answer, was not put into his hands 
til! 11 o'clock (;n Sunday: which left him no more time for the preparation 
ot his answer, than the residue of Sunday, and so much of the next mornine- 
as could be spared tiom the prepaiations necesiu-y to meet the court, three 
miles olF, by ten o'clock. 



45 

if any other there be, referred to in a letter from saul captain Da- 
vid Porter to the Secretary of tlie Navy, datetl April 13th, 1B25. 
He further stated that the counsel for captain Porter, and captain 
Porter himself, had been notified, on tlie Hth July, instant, to pro- 
duce the aforesaid paj)ers on the trial of tliis case.*- 

To this application captain IVu-ter made the following answer : 
In answer to the call made by the judge advocate, lor the produc- 
tion of a certain correspondence between captain I'orterand "Mr. 
Monroe, late President of the United vStates, dated on tlie 10th 
and 12th days of March last; bein<>; two notes from captain Por- 
ter, of the aforesaid dates, to Mr. Monroe, and one note from Mv. 
Monroe, dated on the !2th;" he remarks, from the reference to 
dates, after Mr. M(»nroe had ceased to be President of the United 
States, that a correspondence merely private, and unoHicial, is whist 
this call purports to have tiesignated, lie coiiceiviid the sixxitica- 
tion vague and uncertain enough, when it accused him of the writ- 
ing of insubordinate and disrespectful letters; of which, neither 
the identity, nor the exceptionable passages, were pointed out, 
otherwise than by a naked reference to dates. But now, letters, 
to which not one of the specifications purport to bear tlie remotest 
reference, are called for. 

Captain Porter, in answer to this call, has only to say, tliat it is 
incumbent on the judge advocate, in the first instance, to show the 
relevancy of this correspondence, to the mattei- in issuc: which, 
of course, will include the kindred question ; By what right, is the 
private and unoflicial correspondence of the accused, to be sub- 
jected to this inf|uisitorial power? Is he to be compelled to dis- 
close' his private correspondence, merely to have it examined to 
see whether it contain any criminating matter? And, if it should 
be subjected to this inquisitoiial power, and should appear ever so 
oti'erk^ive in its language, is it to be contended that lie could be 
called to account, before this court, for atiy otVence that could be 
taken at an unpublished correspondence? But he has this only to 
remark, in conclusion, that, as Mr. Monroe is a party to tlie al- 
leged correspondence, is the depository of a part, or ui' the whole 
of it, and, of course, is entitled to all the inviolate sanctions of a 
private correspondent; when he shall give up his part (d' it to the 
prosecution, or when it shall be authentically certified to captain 
Porter, that Mr. Monroe desires the disclosure of it, then it \,\\\\ be 
time enough to call upon captain Pcnter to decide on the expedi- 
ency of surrendering such parts of the correspondence as may be 
in his hands. But he reverts to the original (juestion, and demands, 

♦ Note. The folli.wing is the no'ace referred to, as above. 

" 'Japtain David Purtm- is ivquirtd to produce, before the general court- 
martial, now in session in the city of Wash in j^t on, tliat the same may bo '^'wvn 
in evidence on his trial, a certain correspondence l)i'tween him and Mr. Mon- 
roe, late I'rt-sideiit of llie Uniled Stales, bearing date the lOtli and 12th days 
of Maich, 182.5, bcinsj two notes from captiiin J'oi'ti.r, of tlie aforesaid dates, to 
Mr. .Monroe, and one note from Mr. Monroe, daUd tlie V2*h ^ 'arch, and sn'.:h 
other note, if any there be, referred to in a Icti. r from said captain David Por- 
ter to the Secretary of the Navv, dated April 13, 1825. 

KlCilAIiU S. (JOXE, Judge Jdvocate. 

July 8, 1825," 



46 

from the judge ailvocate, an explanation, under what specification, 
and for what purpose, this newly designated correspondence, jiri- 
ma facie, so foreign to anj thing in the matter of ihe accusation, 
is to be offered in evidence?" 

The judge advocate then called upon the court for permission 
to issue interrogatories, to take the deposition of Mr. Monroe. 
The court was cleared to consider this question ; and it determined 
that the dcpositiun o\ Mr. Monroe may be taken upon interroga- 
tories: wheieupon the judge advocate was directed to prepare his 
interrogatories, and to submit the same to the accused, who shall 
be at liberty to file cross intcrrogatmies, if done without delay ; 
and that the same be tratismitted to the witness, with a request 
that he answer the same, and swear to such answers, before any 
judge, magiatratci or notary public ; and that the same be deeintd 
a sulficient authentication of such evidence. \Miereupon the court 
was opened, and this decision announced.* 

* Note. Upon what autliority this extraordinary "decision" proceeded, no 
explanation was ever voiiclisated, othei- than what may be inferred from the 
judg'e advocate's urgiuneiit^n answer to the objeciions against the second charge 
and its specifications : in wliich argument it is seriously contended, tiiat courts- 
martial ])ossess a kginhtivt power to define and jjunish as a crime, any act what- 
ever, wiiich, m tlieir discretion, may be deemed proper to be treated as a mil- 
itary ofl'ence ; thoug-h not comprehended in the enumeration of crimes and 
punishments, cognizable under the articles of war, or any other law. If they 
have this legislative jurisdiction over the all-important subject of crimes and 
punishments, it is but a small stretch, to ordain new rules of e\idence, and to 
repeal tlie old. That nothing short oi' kgi-slatite power, could have authorized 
this " decision," is clear : for it is not only utterly destitute of authority, from 
any existing law, but a virtual repeal of existing laws directly against It. The 
nniversal,and hitherto, uucjuestioncd, canon of evidence, in all criminal trial?, 
whether before civil or mihlary tribunals, is, that the witness shall be conliont- 
ed with the person accused; except in a few stated cases, specially provided 
lor, by statute; in whicli depositions, in writing, are admitted, to supply the 
piace of wV« i'ocf evidence. One of these stated exctptions is to be found iu 
tlie miriary articles of war; which do admit, in cases nnf capital, the deposi- 
tions of witnesses, not in the line of the army, to be taken before 3i justice of 
ihe peace; "provided tlie prosecutor and person accused, arti p-esent at the tak- 
ing of the same, or are dulij nuiijicd thereof" No analogous provision what- 
ever is found in the n./m/ articles of war ; but, on the contrary, the oTth of these 
articles expressly requires all testimony to be on oatli or affirinatioii, adminis- 
tered by the /"/(.s/rf:/!/ of tiie court ; necessarily reqoiiing XhQ presence of the 
witness, and liis examination in (rpen court. Thus it apjiears, that this spcei;il 
enuclment of positive law, ami the established canon, or rule of evidence, be- 
fore mentioned, aie both npeulid by the "(/etvAw/t" here announced. That "de- 
cision," if it had proceeded fioin an arnii/ court-maitial, could not ha\e been 
justified under the authority of the 74th inil.iury article of war. Such court 
could haM' jiistlhid it, no otiierwisr, tluiii by its legislative discretion. 1. Be- 
cause the (U])osition isordiredto be taken in a a//)/7(// f(/.«t". 2. Hefore «?/y 
judge, nuigislratc, or notary,- whereas the aforesaid 74tli article designates a 
justice (if the peace, as the sole description of ///(/if/i/zv/c so authorizA-d; with 
which cautious limivation of the authority, tlie extreme latitude of "wjy r/w/- 
i^istraie, or notary," is too stiongl} and obviously contrasted, in terms, to re^ 
quire any illustration, o. Uecause the deposition is to be taken, or iniorogn- 
iori.e.'i, witliout 7iotice to the person accusetl, to /rrcient at the caption, as ex- 
pressly requiied by the aforesaid 74tli article ; which is certainl)' the ne*:t !>est 
precaution to that of a viva voce exaniinaiion in open court. But It is time 
thrown away, to be discussing the effect of this " decision," upon the supposi- 
tion of its having emanated from an mmy court-martial, since it so clearly ap- 



47 

Captain Porter, having heard the order read, directing the de- 
position of Mr. Monroe to be taken on interrogatories, as well on 
the part of tlie judge advocate, as of the accused, suggests, that 
before he can frame any interrogatories on his part, discreetly 
pointing to the gist of the accusation, which the correspondence 
before alluded to, between himself and Mr. Monroe, or the depo- 
sition of the latter, may be cited to support; it will be necessary 
for the requisition tipon the judge advocate, contained in captain 
Porter's answer to the call for the said correspondersce, tobecom- 
plii'd with; namely, to declare, specifically, the purpose and ob- 
ject of offering the said correspondence in evidence, and the par- 
ticular point of the accusation to which it is supposed to relate. 
Captain Porter begs leave further to suggest, that the interroga- 
tories to be exhibited to Mr. Monroe, on the part of the prosecu- 
tion, will, probably, only go t(» the authentication of the supposed 
correspondence; and they uill, of course, atfurd no clue to divine 
the purpose, or the gist of the accusation, for wtiich the corres- 
pondence is wanted. 

The judge advocate inquired whether the foregoing was design- 
ed as an application to the court ; to which the coijiisel of captain. 
Porter replied, that it was an application to him. The judge ad- 
vocate then remarked, that he must answer in the negative, and 
decline going into any specification. It was then said, by the 
counsel for the accused, it would be deemed an application to the 
court. 

The court WAS cleared to deliberate upon the application, on the 
part of the accused ; and, when it was opened, it was announced 
that the application is not complied with. The court then adjourn- 
ed till eleven o'clock to-morrow morning. 

THURSDAY, July 21. 

The court met, pursuant to the adjournment of yesterday ; pre- 
sent, all the members of the court, the judge advocate, and cap- 
tain Porter. 

pears that a «ffm/ court-mart'sal claims such authority; not, like the urm^ 
court-martial, from anj' express ])rovlsi()n in the anicles of war, by which it is 
governed, but directly against tiie tenor of one of these very articles. The 
whole dilticult}' is very compendiously solved, by the simple assumption of 
this legi^lalive discretion to niaiie and repeal laws. It cannot escape remark, 
however, what needles?? pains Congress took, in the 74th of the mlLtia-y arti- 
cles of war, to prescribe the mcthud of taking- deposiiioiis, and the occasions 
on wliicii tlu-y might be used as evidence; since the power of a naval court- 
martial, to institute new rules of evidence, and, otherwise, to make or repeal 
law-, cannot be denied to an ufiny court-martial : and how much more labour 
has been thrown away, by the same wise body, wjien they instituted the ex- 
isling criminal codes, for the navy and army; comprising in the two sets of ar- 
ticles of war, from ninety to one imndred articles, enumerating and defining- 
military cranes and punishments. 

Commodore I'orter, for reasons staged by him, in a subsequent part of these 
pr-jceeding's, made no obj.-ction to the caption of Mr. Monroe's de])0-;ition, 
when it was uhimately produced by tiie judg-e advocate. liut that is no rea- 
s)n wdiy it shcuM either slide into pieccdont, or be repudiated by future. 
coTU'ts-mavtal, without « full exposition of its principles and ilsuieritsi, 



48 

The pioceedings of yesterday were read. The judge advocate 
then pioc'-eiini to read, [il tjeing admitted the original is in the 
hand uriiing ot captain Porter,] the original letter from captain 
Porter to the President of the United JSiates; and, it appearing 
tliat the same corresponded with tlie certified topy which was of- 
fered ye'^teriluy, with the exception that the word President was 
writt^'n at full length in the one, and Prest. in the other ; that Mr. 
Randall')? name was, in the original, spelled with one I, and with 
tvvo in the copy; and tiiat the date of the original, was April ITth, 
1825, and that of the cop}^, 17 April, 1825: the variations were 
corrected, and the cop> annexed to the record and marked. The 
judge atlvocate stated that he had left the documents, which it was 
de^i^ned to exhibit in evidence, at the navy ilepartmeiit. with a 
request that tiiey uiight be particularly compared with the origi- 
nals, and that tliey should be brought down by a witness prepared 
to svvear to the.i accuracy.* 

The judge advocate further stated, that, at the opening of the 
court, this morning, he had submitted to the counsel for the ac- 
cused, the interrogatories to be propounded to Mr. Monroe, for 
tire purpose of having the cross interrogatories annexed tiiereto: 

* Note. Why all this parade of minute accuracy, in noting frivolous va- 
viances between the copy and the original ? Is it meant to insinuate that it 
was to gratify objections, equally minute and captious, on the part of com- 
modore l^ortcr? i'lie prosecution, doubtless, stood in much need of some such 
precedent to countenance the charge against the ctjnimodore, for alleged in- 
accuracies in his publication of the jiroceedings in the late court of inquiry : 
the enumeration of which inaccuracies, as will jiresently be seen, descends 
into mhiuiiu; more frivolous even than the difierences, noted in the text, be- 
tween the original and the copy of the letter lefeiTed to. But nothing covdd 
be more unjust than to impute to any objections, taken by the commodore, 
in this, or in any other instance, thiough tlie wJiole course of his trial, a de- 
gree of captiousncss and futdity, unusual even with persons, who, from habit 
or education, Iuiac tlicir views narrowed, and their minds commiiuited, for 
the perception of ideas merely tecimical and professional: on the contrary, 
his candour and liberality in this, as in ever} other instance, tiirough the whole 
Course of his trial, have been conspicuous ; and will be so pronounced by all 
who shall take the trouble to read and judge for themselves. In this instance 
greater liberality could not have been shown, in an amicable discussion be- 
tween private gcnilemen. A copy of a letter, no otherwise authenticated t'naii 
by a single certificate of a clerk in the navy department, is produced, which 
doe-> not agree in date, and some loinute ]5articulars, v.ith commodore I'or- 
ler's private copy. He requests that the oi'iginals of tliis, and the other let- 
ters, to be offered in evidence, may be ])roduced, in order to have the copies 
exact; but, in the mean time, consents to let the reading of the copies go on, 
STibiect to future revision and correction by the originals. Even this simjilc 
])roposition is made tlie subject of serious discussion in closed doors: "and, af- 
ter some time spent in deliberation," the court, at lenglli, came to the grave 
conclusion, that a copy, catijicd by the chief clerk of the navy department, is 
not admissible. No notice is taken of the offer to goon with the coi)ies, sub- 
ject to revision and cori'cction by the originals ; but there is all this ostentation 
of supc-rMuous care and minuteness in the comparistui, first at the department, 
am] then in court, hetv.een the oi'iginals and copies : for which comparison at 
the de))artment, the court had to wait nearly two days, as if the first copies 
had been offered, and insisted on without sucli examination ; and, as if such 
compari.-.on, there certified, wer^ to dispense with the production of the origi- 
nals as tlie priin:iry evidt'iice in the case. How that matter was managed, will 
presently appear. 



49 

anil that it was important to have the same completed, that they 
might be transiuitteci without delay ; the counsel for the accused 
replied that he had been unable to complete the same, but would 
have it done by the opening of the court in the morning. 

Captain Porter then submitted to the court the following paper: 
Captain Porter having been this day, af'er the meeting of the 
court, served by the judge advocate with a copy of his interroga- 
tories to Mr. Monroe, to which, he perceives, is annexed the ori- 
ginal correspondence, alluded to in the call made upon captain 
Porter, by the judge advocate, yesterday ; that is, the original let- 
ters of captain Porter, of the 10th and 12th of March last, and the 
rough draught of Mr. Monroe's answer of the 12th, which dis- 
penses captain Porter from any delicacy in saying, that he admits 
the authenticity of the said letters. But, being still uninformed of 
the purpose, intended by the introduction of the same, he reserves 
all proper objections to the relevancy, and admission of the same, 
as evidence, whenever the same shall be offered as such evidence. 
The court having continued in session until near three o'clock, 
and no witness having appeared, the court adjourned till ten 
o'clock, to-morrow morning. 

FRIDAY, July 22. 

The court met, pursuant to the adjournment of yesterday ; pre- 
sent, all the members of the court, the judge advocate, and cap- 
tain Porter. The proceedings of yesterday were read. 

John Boyle, avvitness, being called and duly sworn according 
to law, deposes and says—- 

Q. Are you a chief clerk in the navy department? 

A. I am. 

Q. Have you carefully compared the papers, now shewn you, 
with the originals on tile in that department, and are they exact 
copies ? 

A. I assisted in the examination of the papers. All those fronj 
commodore Porter, were compared with the originals ; those to 
him were compared with the records in the department; the ori- 
ginals of these letters were transmitted to captain Porter. I be- 
lieve them to be true copies. 

The judge advocate then proceeded to read the following docu- 
ments: 

1st. The residue of the letters referred to in the first specifica- 
tion of the second charge. 

1 2nd. The pamphlet referred to in the second specification, with 
the letter transmitting the same to the Secretary of the Navy ; the 
publication of the pamphlet being admitted. 

The accused submitted to the court his cross interrogatories, 
accompanied by a protest. The judge advocate stated to the 
court, that an assertion was contained in that protest, in the fol- 
lowing words: •' Having repeatedly called upon the judge advo- 
cate lor some precise specification of the circumstances, wherein 
the supposed guilt, ioiplied by the accusation under the head of 
the second charge, consists ;" that this assertion contains the first 



50 

ihtlinatioii he has ever received of such application.* He wished 
also the opinion of the court, whether the protest should be irans- 
mitted to Mr. Monroe, with the interrogatories. The court was 
cleared, and when it was opened, the opinion of the court was an- 
nounced that such protest was not proper to transmit to the wit- 
ness, but that the same may be annexed to the record ; v\ hich was 
accordingly done, and marked. 

The reading of the pamphlet continued until half after three 
o'clock, when the court adjourned till ten o'clock to-morrow morn- 
ing. 

SATURDAY, July 23. 

The court met, pursuant to the adjournment of yesterday ; pre- 
sent, all the members of the court, the judge advocate, and cap- 
tain Porter. The proceedings of yesterday were read. 

The judge advocate stated, that the intt-rrogatories, and cross 
interrogatories, submitted yesterday, had been put in the way of 
going to Mr. Monroe, without delay, accompanied by a letter urg- 
ing his immediate reply, and pointing out the mode in which the 
deposition should be authenticated ; wluch letter had been previ- > 
ously submitted to the accused and his counsel. The reading of ] 
the pamphlet was ccmtinued and concluded. \ 

The judge advocate then proceeded to point out the particulars ! 
in which the statement of the proceedings of the court of inquiry 
was deemed incorrect; and submitted a copy of the original re- 
cord of the proceedings of the couit ot inquiry, which was com- 
pared with the original record, in the presence of the court. Tlie 
judge advocate stated that he would particularly state such vari- 
ances in writing. 

The judge advocate then submitted to the court the National 
Journal, of June 16th, 1825, containing a publication, which cap- 
tain Porter admitted to be his, under date of June 15th, 1825. 

The court then adjourned till ten o'clock on Monday morning. 

MONDAY, July 25. 

The court met, pursuant to the adjournment of Saturday ; pre- 
sent, all the niembers of the court, the judge advocate, and captain 
Porter. The proceedings of Saturday were read. 

The judge advocate slated that he had received no answer from 
Mr. Monroe, but expected to have it in the course of the day. The 
judge advocate proceeded to read his note, of all the variances 
which he had discovered between the original record, and the pro- j 
ceedings of the court of inquiry, as published by captain Porter; ' 
which was annexed and marked. 

A paper was read by the judge advocate, containing a statement 
of certain facts, agreed to by both sides, dispensing with the at- 

♦NoTE. The meaning' of this " assertion," and the grounds of it, are so ob- 
vious, as to require no remark ; all who read the procceding-jj thiougii may sa- 
tisfy themselves. 



51 

tendance of witnesses to establish them ; which was also annexed 
and marked. 

W iLLiAM W. Seaton, esq. being duly sworn according to law, 
deposes and says — 

(Examined by the Judge Advocate.) 

Q. Are jou one of the editors of the Is'ational Intelligencer? 

A. Yes. 

Q. Is the paper now shewn you, of ^'arch 50th, 1825, one of 
the numbers of that paper from your office ? 

A. Yes. 

Q. From whom were the official documents, therein printed, 
procured, purporting to be from the Secretary of the Nav)^ to com 
modore Porter, und from commodore Porter to the Secretary of 
the Navy, being four in number ? 

A. The shortest, and most acceptable way of answering the 
question, will be to read a correspondence between the Secretary 
of the Navy and ourselves, upon the subject; which will shew 
what answer I am prepared and willing to give. [The court was 
cleared, and decided that it would accede to the request of the 
witness, and hear the letters read, to v\hich he had referred ; and, 
being opened, this decision was announced.] The letters refer- 
red to were then read. 

I atn not willing, for the reasons stated in the letters read, to 
give any other answer than that which we gave to the Secretary 
of the Navy. 

The President of the court having directed the court to be clear- 
ed, the accused, by his counsel, stated that, perhaps, the difficul- 
ty might be obviated ; and read, and submitted to the court, the 
following paper : 

Captain Porter having heard the evidence of Mr. Seaton, and 
the correspondence between Messrs. Gales and Seaton, and the 
Secretary of the Navy, as to the author of the publication of a 
certain correspondence, between the Secretary of the Navy and 
captain Porter, in the National Intelligencer, of the 30th Mf»rch 
last, and perceiving that the witness, as editor of a public journal, 
has claimed a privilege, as well before this court, as in his corres- 
pondence with the Secretary of the Navy, to withhold the name of 
the author of any publication, not impeached of falsehood; and 
that the court is about to deliberate upon the objection of the wit- 
ness, to disclose the author of the publication in question ; captain 
Porter has no hesitation to admit n4)w, as he would have avowed 
to the Secretary of the Navy, if he had pleased to have directed I is 
inquiries to captain Porter, instead of the printers, that he did 
communicate, and cause to be published, in the Intelligencer of 
the 30th March last, the correspondence between himself and the 
Secretary of the Navy, which that paper purports to contain^ 

The judge advocate then submitted to the court, the National 
Intelligencer of March 30th, 1825, containing certain correspon- 
dence between the Secretary of the Navy and captain Porter, 
anijcxed and marked. 



52 

Peter Vorce, a witness, being duly sworn according to law, 
deposes and says — 

Q. Are you the editor of the National Journal ? 

A. Yes. 

Q. Look at the communication in your paper of June l6tli, 1825; 
f'roui whom did you receive that, and when ? 

A. I received the note, and the acccunpanying documents, from 
commodore Porter, on the day of 'the date of it, June 15th, 1825. 

Q. Did any, and what conversation take place between your- 
self and commodore Porter, in relation to the letter dated June 
14th, 1825? 

A. (Commodore Porter having, on a suggestion of the witness, 
absolved him from all obligation of secrecy.) 1 read the letter in 
the presence of commodore Porter; and, perceiving that, as I un- 
derstood it, commodore Porter attributed an anonymous commu- 
nication, which had appeared in the Journal ot the 13th, to the 
Secretary of the Navy; I informed commodore Poiter that it was 
not from the Secretary of the Navy ; and, also, told him, I was au- 
thorised, by the author of the communication, to inform him by 
whom it was written, when properly requested so to do. He re- 
plied, by declining to hear by whom it was written. This took 
place on the 15th June, when I received the communication, the 
tlay before it was published in the newspaper. At the same time, 
I mentioned to commodore Porter, that tiie anonymous communi- 
cation was not by the Secretary of the Navy ; he remarked, I 
think, the similarity of the langua}j;e, in the letter from him of the 
13th June, (one of those in that communication,) witli the anony- 
mous note published in the Journal, was sufficient to warrant the 
opinion he had formed. 

(Cross examined on the part of the accused.) 

Q. When you remarked, in reference to my letter to the Secre- 
tary, of the 14th of June, that I was mistaken in supposing that 
the Secretary was the author of the anonymous note, referred to; 
did I not point out to you, the striking lesemblance and corres- 
pondence between the date and the language of that note and the 
Secretary's letter of the 13th of June } 

A. I am ilnder the impression that commodore Porter, referred 
to it, but cannot recollect whether he pointed it out. 

Q. Did you not express yourself as struck with these resem- 
blances, in so much that if you had not known the real author of 
the anonymous note, you might have drawn the same conclusion ? 

A. No, — I think I expressed no opinion of t!ie kind; 1 think I 
observed there was a resemblance. 

Q. Did I not remark to you, that \ihether the Secretary did or 
did not actually write or communicate the anonymous note, — cir- 
cumstances justified me in concluding, at the time 1 wrote my 
letter of the 14th of June, that the note liatl come from an odlcial 
source, and had been approved or counteiuiiiced by hiui.*^ 

A. I think commodore Potter did make such a remark in sub- 
stance. 

The judge advocate stated that lie had now submitted to the 



53 

court, all the testimony which he purposed hiying before it at the 
present stage of the proceedings, with tlie exception of Mr. Mon- 
roe's deposition. Captain Pt.rter intimated his readiness to pro- 
ceed with the evidence on his part. r , i 

John Simpson, a witness produced on behalf of the accuset! 
depos. s and says, 

Q. [By the accused.] Were you employed by me, during the 
sitting of the late court of inquiry in my case, to copy from the 
judge advocate's record, the proceedings ot the court tor my use ? 

Ji. 1 was. , , . . , 

q. Were you furnished by the judge advocate, with his minutes 
of the proceedings, for the purpose of being copied for me ? 

d. 1 was. . , 

Q. Were the copies which you did make of those minutes, made 
carefully and accurately, and word for word, with tlie ongmal as 
it then stood ; except the statement given in the first day's pro- 
ceedings, of what I said in answer to the question, whether I i.ad 
any objection to otter against either of the members ot the court . 
d. The copy I made was a true copy. 

Q. Were you present on the first day ot the court, when I stat- 
ed my objection, and did you take particular notice ot my words 
and accurately recollect them? . 

A. 1 do not now recollect them ; I took particular notice and 
recollected them for some days after. 

Q. Examine the two statements of the terms of my said objec- 
tion,— first, as it appears at p. 5, of the copy of the original re- 
cord now shewn you ; and secondly, as corrected at page 2i. ot 
the same document; and say, according to the best of your re- 
collection now, and when the subject was newer and tiesher in 
your memory, which of these is the true statement of the terms 
in which I originally submitted that objection ? 

(The witness is here shown the copy of the original record, pro- 
duced in evidence by the judge advocate on Saturday, and those 
passages of the same, wherein the original minutes ot capcam f or- 
ter's objection is entered ; in the proceedings of Monday, Ma) al, 
and corrected in those of the Thursday following, are designated 
lor the examination of the witness.) 

A. I have a recollection of tliis, the last is the correct one. 
Q. Examine the nine sheets of paper now shown you, and say 
whether they be the original manuscript, in your own hand-writ- 
ing, of the c(.py which vou took, as you have before stated, troni 
the minutes furnished vou by the judge advocate ? 

A. Thev are the original manuscript of my copy, and are an ex- 
act copy of the notes furnished me by the judgp advocate; (they 
extend as far as the end of the first paragraph on page 27, ot th» 
pamphlet.) 

(Cross examined by the Judge Advocate.) 
Q. Can you say that no error or omission was by accident made 
bv you in your copying? 
' A. I believe there was not any. 



54 

Q. Was the copy compared with the origVnal, and with whose 

assistance F 

^. I read it over myself. 

Q. Look at page 23, of the pamphlet, and see whether the words 
"holds the hi-jhcst commission which" were not omitted hy you 
in copying? 

J. 1 do not think I omitted any thing in copying. 
Q. Look at the paper handed you, and see if it be the original 
pap-r from wliich you to(»k that part of your copy ? 

(The judge advocate here exhibited to the witness his original 
note of this part of the proceedings of the court of inquiry.) 
Jl. I cannot be positive. 

q. Were the papers, submitted to the court of inquiry, bv cap- 
lain Porter, in ywur hand-writing, exact copies of the original ? 
jj. They were. 

q. Did you copy the latter part of the paper marked B, I mean 
the copy froo which the pamphlet was published ? 
Jl, i think I copied it ; I am not certain. 

Q. Was the copy furnished captain Porter of that paper, an 
ex;K ' transcript of the original ? 
J. Yes. 

Q. Did captain Porter, to your knowletlge, ever compare or as- 
sist in comparing your copy with the original from which it was 
taken .'' 
^. No. 

Q. Do you know whether the original notes, were read to the 
courtof inquiry as the record of its" proceedings, or a fair tran- 
script of the same .^ 

JI. I do not think the original notes were. 

Q- Do you know whether the record was ever rectified pub- 
licly, as for instance, at the request of a witness? 
rS. I do not. 

q. W^as n(.t a letter in your hand writing, transmitted to the 
court of inquiry, found to be dated March 6th, instead of May 6th, 
by vmr mistake? 

^. Yes. - 

Q. Have you any more confidence in the accuracy of the copies 
which you have now sworn to, than you had in that before the 
error was pointed out? 

t/?. I ha^e tnuii; confidence. 

((. Did you conceive it possibh^ that any inacruracv had been 
committed on that occasion, by you in copying, that letter, before 
captain Porter inroiniod yon of the mistake in date, and did vou 
n-.t re<{ue,t to see the p.^per in your own hand vviiting, before 
you would believe that it could Imve bei'ii made? 

^. I did not know that 1 had committed the mistake until l 
Saw it. 

(lie -examined hij Captain Porter.) 

Q. Did I frequently enjoin upon you, whilst engaged in copy- 
ing the minutes of the court of inquiry, to be very particular and 
accurate ; and did you take particular paius to be so? 



55 

A. I did take particular pains to be so; captain Porter saw I 
was very paititulai", and I do not know that he made any sucK 
request of me. 

Q. fBv a member of the court.] Are you much in the habit of 
copying Troin manuscript, and were the notes written in a fair, 
legible hand ? 

A. I have copied a good deal, and the notes from which I copied, 
were fair and legible. 

Q. [By captain Porter.] Look at the sheet of paper now shown 
you and say whether it be the same, or like the hand-writing of 
the minutes fmrn which you copied r 

A. I think all 1 copied, was in tliat hand-writing; some came 
after, which I did not copy, in a different hand. 

[It is admitted that the paper shown, was in the hand -writing 
of Mr. Harrison, in whose hand also the principal part of the orig- 
inal record is.] 

Q. Was yi'ur transcript of my letter, in which the mistake of 
the date occuired, as above mentioned, taken from my rough 
draught; and are my rough draughts generally written in a fair 
hand, or in a very hurried rough way ? 

A: I do not recollect particularly ; it was very easily read ; I 
read commodore Porter's rough draughts very easily. I have been 
captain Porter's clerk about fifteen months. 

The court adjourned till ten o'clock to-morrow morning. 

TUESDAY, July 26. 

Tlie court met pursuant to the adjournment of yesterday ; pre- 
sent all the members of the court, the judge advocate and cap- 
tain Porter; the proceedings ofyesterday were read. 

John T. Ritchie, a lieutenant in the navy of the United States^ 
a witness on the part of the accused, being duly sworn according 
to law. and examined by captain Porter, deposes and says, 

Q. Examine the four sheets of paper now shown you, and say 
in whose hand-writing the same are.'* 

(The witness is here shown tiie manuscript copy from which 
was printed what is contained in the pamphlet given in evidence, 
under the 2d and 3d and 4th specifications of the second charge, 
from where the manuscript copy proved by John feiinpson, yester- 
day, ended, on page 27, to the end of the paragraph ending with 
the words, " at eleven o'clock," on page 32 of the same pamphlet.) 

A. The first three are in the hand-writing of Mr. Sarazan ; the 
last sheet in the hand-wriiing of Mrs. Simpson, wife of iMr. John 
Simpson, with the exception of a few words in the latter part of 
it, — (of which I have no knowledge) : — the word which in the 4th 
line from the bottom, and the word beiriii' in tiie 3d Jine from the 
bottom, these words are in the hand-writing of captain Ptu'ler. 

Q. What was the character, and in whose hand-writing was the 
original from which those sl.eets were copied ? 

A. They were part of the proceedings of the court of inquiry. 
and in the hand writing of thejudge advocate. 

Q. Did you carefully and accurately co;i!pare these fo«r sheets^ 
with such original.?, and arc they exact copies? 



36 

Please state the manner in which vou compared the copy and 
the original, and whether you arc certain of the accuracy of the 
copy? 

j3. I think I read them over the first tliree sheets two several 
times, first I read the c(»py with another person, (my wife,) who 
w^as looking over the original, and afterwards- read over the origin- 
al ; she having the copy, — I discovered no error throughout, — the 
last sheet I examined in the same manner with Mrs. Simpson. 

Q. What has become of Mr. Sarazan, — has he left this part of 
the country ? 

Jl. I believe he is in the city of Washington, but I have not 
seen him myself since soon after this thing occurred. Philadel- 
phia is his home, and he may possibly have gone there. 

( Cross examined bt/ the Jiidg-e Advocate.) 

Q. Do you know whether captain Porter ever saw the original 
papers from which the copy was taken ? 

A. 1 do not. 

Q. Would you now recognize any one of these papers as such 
original ? 

A. 1 think not. 

The judge advocate then read a sentence from what !ie stated 
to be the original minute furnished, of the proceeding of Monday, 
May 9th, and exhibited the paper to the witness. 

Q, Can you not recollect this paper to have been the paper from 
which the proceedings of that day were copied, from the sealing- 
wax dropped on it ; — and is the second paragraph in the one, an 
exact copy of the other? 

A. I cannot identify the paper, — on a comparison there appears 
an entire line omitted. 

Martin King, a witness produced on the part of the accused, 
being duly sworn according to law, and by him interrogated, de- 
poses as follows : 

Q. W^ereyou at the time of the printing and publishing of my 
pamphlet, (now shown you,) and are you still foreman in the print- 
ing-office of Davis and Force, when that pamphlet was printed? 

[The witness is here shown the pamphlet formerly given in 
evidence by the judge advocate.] 

A. I was then and am now. 

Q. Examine the thirteen sheets of paper, writing now shown 
you, and say whether they be the identical copy from which that 
pamphlet, or so much of it, as is composed of that copy, was print- 
ed ? 

The witness is here shown the same nine sheets of copv men- 
tioned in the evidence of John Simpson, and the four sheets men- 
tioned in ilie eviilence of lieutenant John T. Ritchie.] 

A. I believe tliem to be the same. 

Q. Were the proof sheets of the pamphlet, diligently and care- 
fully compared with the copy, and every typographical error th 
was detected, carefully corrected, and was this comparison made 
both by the proof-reader in the printing-office and by myself? 

A. They were, — I read them over twice, and captain Porter 
read them over once. 



57 

(Q^aestion by the Judge Mvocate.) 

Q. Was all the copy from which that pamphlet was published, 
with the notes and marks to the different tlociunents therein con- 
tained, communicated by captain Porter for the purpose of print- 
in" that pamphlet, and was he satisfied with its accuracy? 

1i. No complaints were made by him of any want ot accuracy. 
I saw one or two noticed in the public prints, such as clothes for 
colors, and perhaps one or two others of the same kind. 

The accused then submitted to the court, a letter (rom R. S. 
Coxe, the judge advocate, dated May 21st, 1825, which was read, 
annexed to the record and marked. 

The judge advocate stated that he wished it to appear on the 
record, to what application that letter was an answer, and that he 
was desirous of exhibiting before the court the same statement in 
legard to it, which he had before submitted to captain Porter. 

William W. Se\ton called by the accused. A question was 
pn.posed to Mr. Seaton on the paVt of captain Porter: the judge 
advocate stated that he felt great reluctance to interpose any dif- 
ficulty in the way of any investigation, which the accused might 
deem it important to pursue ; but that the question now stated, 
and the in(|ui'.y designed to be made, appeared to him so wholly 
foreign to the inquiry in which the court was engaged, that he felt 
it incumbent up(m him to take the opinion of the court upon the 
subject. The object of the accused had been communicated to 
him, but he wished it to be submitted in writing, to the court, to 
enable it to decide up(m the point with accuracy. The reasons 
having been stated, the court was cleared, and after having ma- 
turely considered the same, the court i*of opinion that the que.s- 
tionbe put, which decision was accordingly announced. 
Mr. Seaton was then called — 

Q. [Bv captain Porter.] Look upon the 3d paragraph of the 
third pag'e of the National Intelligencer, under date of May 5th, 
1825, in the words, " we are informed that we did not exactly 
understand," &c. and say by whose reque^st that paragraph was 
published, and by whom it was communicated, in terms or in sub- 
stance ? Tf • U i. 

Jl. I cannot answer the question with propriety. It it be not 
absolutely essential for the purposes of justice, I should prefer tor 
the reasons stated yesterday, not to give any other answer. I have 
an additional reason in this case for declining, because the commu- 
nication w.as expressly a private and confidential one. 

The court was cleared to deliberate upon the course to be pur- 
sued. 

Upon the opening of the court it was announced, that the court 
is of opinion, that, although from a wish to afford every facility to 
the accused, in pursuing any investigatio.n which he may deem 
important, it did permit the question proposed to be propounded, 
and would have permitted the witness to answer it ; yet, when the 
court is called upon to determine whether it will exercise the 
power which tlie law confers, of coercing the witness to answer, 
8 



58 

the question assumes a more serious aspect, and the court, aftef 
mature consideration, is ot" opinion, that the question proposed, is 
one which cannot, in any material degree, attect the case of the 
accused ; and, therefore, will not compel the witness to reply to it. 

The counsel for the accused, then prepared and presented ano' 
ther question, which the judge advocate stated was liable to the 
same objection as before. The court was cleared, to determine 
whether or not it should be propounded to the witness. The ques- 
tion is as follows : 

Q. Did the paragraph in question, proceed, directly, or indi-< 
rectly, from the Secretary of the Navy } and what agency had he, i 
if any, in preparing it for the press, and causing its publication ? 

After having deliberated upon the same, the court determined 
that the question shouldnot be put.*^ 

The court adjourned till ten o'clock to-morrow morning. 

* Note. Nothing can be more impeifect and unsatisfactory, indeed whoU) 
deficient in accuracy, tlian these minutes of the proceedings of the court, in 
relation to the testimony of Mr. Seaton, touching the authority on which he 
published the paragraph in question. I'he paragraph, itsclt; as published in I 
the Nationar Intelligencer of the 5th May, 18-25, is in these words: \ 

" We are informed that we did not exactly understand, and of course did 
not accurately state, the ground on wliich the exception taken by conmiodor. 
Porter to the court of inquiry now sitting in this cit^•, was overruled hy th. 
Secretary of the Navy. The letter of the Secretary to the court stated, that, 
as far as tlie Secretary could be called upon for an opinion on that question, 
commodore Porter ought to have made iiis application to him at an eiirWv 
day, but that the opinion of the department, as to the legality of the manm 
in which the cotut was composed, had been expressed in the very act wind 
created and convened the court, and that nothing was <hscovc red in the argu 
ment of commodore Porter to change the opinion. The act of the depar' 
ment was placed, therefore, on the ground of its legality, by the Secretar* 
and not on the ground of time in taking the exception, tliat circ\i .stance bi 
ing incidentally introduced into his letter. Our information was ol)tained in i 
Ctin-ent conversation, an,d was inticjcurate only from not being as fully stated as ' 
it might have been." 

"NVhen the question was first jiut to Mr. Seaton, as above stated, the judge 
aclyocate requested the counsel of the commodore, to state tlie object of t'h< 
evidence, and the reasons for olFering thg same. I'his request was immedl 
ately complied with, in the following terms: 

« Being requested by the judge advocate to skite the uflture and object of the 
evidence, intended by the question to Mr. Seaton, in order tliat the 'court may 
be enabjed to perceive, whether it be pertinent to the matter in issue, the 
coimsel of commodore Pouter, williout any hesitation, submits the following 
summary. ' ^ 

The fact intended to be proved is simply, that the publication in question, 
vas directly communicated, in terms or substance, Ijy the Secretary of the 
Navy, and published at his request. ' 

This evidence is conceived to be material to the defence, upon several 
points of the accusation; if, indeed, there be any thing material in the accu- 
sation itself, upon such points. 

1. Tile first specification of the 2d charge, amongst other «* insubordinate 
and disrespectful letters," refers to one, dated .luiie M, 1825; and as far as 
the vague and uncertain intimations, on the part of tlie jjrosecution, allow any 
insight or conjecture of wliat constitutes tlie exceptionable matter in tliis let- 
ter. It is understood to be in that paragi-apii, which is sujiposed to ascribe to 
the Secretary of the Navy, some agency in the jMiblication of a certain anonv- 
mous note, in the National Joiu'nal of tlie 13th of June last, mentioned in the 
ev.«Jence of Peter Force, Upon this part of tlic accusation the evidenee is 



5y 

WEDNESDAY, July 27. 

The court met, pursuant to the adjournment of yesterday ; pre- 
sent, all the n>embers of the court, the judge advocate, and cap- 
tain Porter. The minutes of the proceeUiiigs of yesterday were 
read. 

material, in two points of view.— 1st. As the publication in the Intelligencer 
oftlie Jth of May, purports to be a correct account of a certain part of the 
proceeding before tiic court of inquiry, then sitting, and to be an answer to a 
pubUcation, in the same newspaper of the day preceding, supposed to be incor- 
rect ; and in which, commodore; Porter takes this occasion to disavow any agen- 
cy whatever; it serves to corroborate the strong and persuasive circumstantial 
pvidence.the mtkuliHr,!, iVom which he might originally have drawn the con- 
clusion, that the subsequent publication in the National Journal, announcing 
tiic supposed inaccuracy of his pamphlet, and an intention, at somefuture day, 
to give a more full and correct account of the proceedings of the same court 
of inquiry, had been made upon the same autliority, or with the implicit sanc- 
tion and approbation of the Secretary of the Navy. 

2dly. As the Secretaiy had published or caused to be published the one 
anonymous piece ; and so, by his own act, had demonstrated his sense of the 
propriety of such a step ; no ditfresped ought to have been inferred from as- 
cribing to him, under tiie most cogent circumstances of probabihty, the pub- 
lication of another, on the same subject, and having, apparently, a similar m- 
tent and object. • , v • 

2. As the 2d specification simply charges commodore Porter With havmg' 
published the proceedings of the same court of inquiry, without mithcrrUy, it is 
material to show that the Secretary of the Navy had previously published, or, 
by his sanction and approbation, express or implied, had authorized the pub- 
lication of what purported to be a full and correct statement of an important 
part of the business transacted in that court; in short, that he had published, 
or authorized the publication of the proceedings of the court, pending the m- 
quiry ; and so, had set a precedent, from wluch commodore Porter had no 
reason to infer, that there couU be any impropriety in doing so, <///«• thA in- 
quiry h(ul been concluded. 

3." As we shall endeavour to show that the statement of the proceeding, 
published by the Secretary on the 5th of May, was incorrect, it may be mate- 
lial to justity what was considered a more accurate publication of the same 
proceccUng, "as it appears in commodore Porter's pamphlet. 

4. As the Secretarv's publication was, doubtless, intended to be correct, 
its Inaccuracies niav furnish an useful Ulustration of the innocence, with whicU 
different men, from the inevitable diversities of impression made on them by 
the same facts, may fall into differences or inad\ ertances of statement, with- 
out laying any foundation for a criminal inference : if, indeed, contrary to our 
present expectation and belief, any inadvertences, chargeable to commodore 
Porter, shall be found in his pamphlet." _ • 

When the final decision of the court was announced, against insisting upon 
Mr. Sealnn's answer to the first question, and against putting the question in 
the modified, and probably tnore covred: form in which it was last presented, 
it was also announced, that the court had directed the aforesaid paper, con 
talning the reasons for offering the evidence, to be returned by the judge ad 
vocate ; and it was done accordingly. From wliich it was taken for granted, 
that it was expunged from the record of the court's proceedings. This cii 
cumstance appears to have been entirely overlooked in the minutes of the 
court's proceedings ; in which it is admitted, such a paper was given in ; but 
what became of it, or what reasons it advanced, are no where specified. 

Upon the decision of the court on this matter, some remarks may be useful 
to illustrate the principles of jurisprudence, and the temper by which it was 
governed, on more important points. 

1 . It was decided upon mature deliberation, and with the reasons of the ac- 
cused for offering the testimony, fully expounded to the court, that tUe e\ •. 



60 

The counsel for the accused proposed reading a papei- to the 
court ; the President of the court announced to hiui, tliat the opin- 
ion of the court yesterday, was, that all communications be sub- 
mitted to it through the judge advocate. 

The counsel declining to pursue that course, the court was 
cleared, and, when it was opened, it was announced that the court 
has decided that the following rule of practice be adopted : 

The accused may submit his communications, in wiiiing, to the 
court; the same shall then be publicly read by the judge advo- ' 
cate, the court reserving the right of admitting and receiving the 
papers, or any part thereof. 

The counsel for the accused then submitted a petition to the 
court, calling upon the court to have the Secretary of the ISavy 
summoned to attend as a witness, or that interrogatories be trans- 
mitted to him, stating his reasons for the sanic. 

dance was proper and pertinent to the defence : nothing short of that could 
possibly havejustified the decision that the qu-^lion be put, notwithstanding 
the objections on the part of the prosecution. Then when thi;y go into a se- 
cond deliberation, upon the objection of the vitness to answer the question, 
they do not allow the privilege claimed by him, but undertake to determine, 
in vyhat dtgrecihe evidence may be useful or material to the defence. It is ma- 
terial enough to justify the admission of the evidence^ if the accused can get 
hold of it ; but not so material as to induce the court to exert its unquestioned 
power, to give him the means of getting the beneht of it. If it be the pro- 
vince of a court-martial, in deciding upon the admissibility and relevancy of 
evidence, to take into view the prudential considerations, which should govern 
the party who offers it : to determine the relative utility and effect of the evi- 
dence, upon his case ; and whether the quantum, of eifect to be produced by 
it, be so great as to make the evidence nectssury to his defence ; or so small as 
that he may dispense with it: doubtless, it must be one of the indefinite pow- 
ers, resulting from the Itgislatlve discretion, before ascribed to coiirts-martial. 
*'ris certain that it is no where recognized, by any authority on the law and 
practice of courts-martial, as before known and established. As to the law and 
practice of the civil courts, -'tis scarcely necessary to appeal to professional 
men tor the unquestionable axiom, thiU the court, wheui'vcr a point of evi. . 
dence arises, has nothing to do but to determine its competency and its rele- 
vancy, m all the diversitied .ind infmite degrees, of direct or circumstantial 
proof; of evidehc:e to corroborate, or to discredit, what has gone before, &c. 
&c. in such questions, the court has nothing to do with the de^-ee \\\ which the 
evidence may operate, either for or against the party who offers it. 

2. Why the records of the court should have been mutilated by expung- 
ing the reasons which the accused had been called upon to state, for offV.ring 
this evidence, is not explained ; and is certainly inexphcable upon anv of the 
ordinary or known principicis of jiuisprudru.,c. That the rtcord is mutilated 
by thus pretermitting an actual proceedings that it is also mutilated by the 
omission to cite the order for expunging the reasons, arc beyond dispute.- 
though the latter may possibly be a clerical error; and accidental. If it pro- 
ceeded from a too sensitive and apprehensive delicacy towards tiie Secretary 
oftiieNavy, a more deplorable evidence of the influence of the supposed 
wishes and interests of the executive, or of a department upon judicial de- 
liber.-itions, could not be adduced. "lis only requisite to read the question 
propounded, and the points to which the evidence was to be applied, as above 
explained, to see how extremely over-nice and fastidious was the delicacy 
displayed in this instance : and 'tis but justice to the Secret.ary of tile Navy, 
to say that, in this u)stance, it was wholly gratuitous on the part of the court : 
for it will be seen from a letter which Mr. Seaton afterwards communicated 
to the court, from the pi-esumed author of the paragraph in question, that the 
Secretary had no personal objection to the disclosure. 



61 

The jiul"-e advocate observed, that t!ie uiiiloi-m practice had 
been, both iii this case, aiut others, lor the anu.<<;d t- hand hitn 
the names of such witnesses as lie \vished to he oihciallj summon- 
ed ; tliatsucli request had been unifoimly and promptly cotoplied 
with ; that no application hud been made to hitn for such sum- 
mons for the Secretary of the Navy ; had it been, it shouhi have 
been aftbrded the accused without iiesitation, and, if now made, 
should be granted at this time. 

The court was cleared, and, when it was o|7cncd, it was an- 
nounced that the paper will not be received, and the jud;;e advo- 
cate is directed to reiurn the same to the accused, which was ac- 
cordingly done,* 

The} judge advocate received a letter from Mr. Seaton, with 
a request that the same be laid before the court; which was ac- 
tordingly done, annexed, and marked.t 

* NoTi;, — The petition of commodore roller above referred to, was as I'r'- 
lows : 

" Mr. President, 

Tiie uncxjjected result of the cxaminalion of Mr, Seaton, yesterday, oblig&s 
'me to prefer tliis, my petition, to the court, to he allovve<l to \>yo\c tiie same 
facts by otlier means By way of excusing- my omission to have tlic evidence 
ready, 1 beg to state, that though I was a]:>prised of Mr. beaton's inten- 
tion to claim the privilege ofc(jnfidence, Ijctwecn liimsc-lf and the correspon- 
dent from whom he received tlic conmiimication in question, 1 had been ^ery 
clear!}' ad»ised, as I thought, that such privih-gc was conlined to a few cases 
of professional confidence: which bore no relation to what subsists betwecii 
the correspondent and the editor of a public journal. 

My petition is, that the Secretary of the Navy, be ei'dier stimmoin : ■ .• 
tend as a witness, or requested to answer the same questions picpounciLd c 
Mr. Seaton yesterday. 

As I had, when called upon yesterday, so to day, I have no objection to ex- 
plain the nature and object of the evidence required ; in order, tiiat tile court 
may judge of itsai)plication and materiality. 

The facts expectL'd to be proved are, that a publication in the NatioTial jii- 
telligencer of the 5th May last, purporting- to be a full and correct statemeiil 
and explanation of a particular part of the busines.s, transacted belbre the la(e 
court of inquiry, then sitting ; in answer to a publication of the da_\- pieccding, 
in the same paper, supposed to be incorrect, A\as inserted in the said pa])ei-, 
at the request of the Secretary of the Navy, or with his implicit sanction and 
approbation. 

1 conceive this evidence to be material to my defence, upon several points 
of the accusation ; if, indeed, there be any thing of substance in the accusation 
itself" 

[The petition then proceeded to rccapituLtte the points of the defence, to 
which the evidence was to be applied, In nearly the same terms as before stat- 
ed, when the question was put to Mr. Seaton. The remarks in the note upon 
that part of the proceeding, dispense with any additional remark he:\ .~ 

■(■ NoTt. — The following is tlie letter referred to : 

IVash'mglon, July 27, 18.. ' . 

SIR: — In answer to a question put to me yesterday by the court-! iiartial, 
I declined ghing the name of the person who was our' authority, for a certain 
paragraph contained in the Intelligencer of May 5th. My unwillingne.ss to 
an.-,wer the question directly, proceeded not from a belief, 'that the gx-ntk-maii 
concerned would fct \ himself agg-ieved by a disclosure of his name ; but from 
a regard for a principh which I deem it hnportant tf- observe, and a respect 
for which dictated mv answer to a similar (piestion, propounded to me by the 
court the preceding day, in reference to jmothcr publication in tiic Intelli- 



()2 

The counsel for the arcu^^oi! slated dial lie Imil notliing to sub- 
mit to tlio court at (liis tiiix-. 

(iiisivvis Uauuison, i\\vii!n'>->, |)i(>iiiU(Ml by the juiljie advo- 
cate, boiiiji; duly swoiii accoiilmj;; to law, and b_v luiit examined, 
tb'posed as follows— 

Q. W'vva you einploMMl by me dniin>j; the sittin;;' of the court ol 
in(|uiry, in (he ease of taplain 1). I'oiier, to <'0|iy the j)ioceediii'^s 
of (he court from my minutes? 

A. Yes. 

Q. Look at the oriiiinal rocotd now shewn vou,*' and say whetiier 
von copied the proceedings of the said court, excepting tliose o'. 
the l;t,«<t d.iy ? 

A. it is all in my hand wr.ltiiij;, with tho exception of some cm- 
recJions, and the proceedings ol ihe last day. 

(^. At what tunc were you furnished the minutes from which 
you took the copy : when diil you relurn mo your copy ; and where 
were those eorroctiims made? 

A. I i!;enerally received thiMU about lour or Uve o'clock in the 
afternoon, after the adjournment of the court ; I copied I hem, and 
r> turned them the next morninj;, btfore tlie meetin;* of the court; 
we then examined them, and the corrections were maile. 

Q. Kiom the tim(> the copy was made by you, until after thost 
«Orrections were made, was it in the pmver ol any omv to havv 
taken a copy from either of those papers, and do you believe any 
'iuch I'ttpy was at any time taken ? 

A. 1 am positive that it was not. 

I'ho accused riot beiiki!; prepared to cross-examine the witnes,«! 
it this time,t the court ailjoiuncd till ten o'clock tomorrow uiom- 
;nj;. 

.ViMiccr. It is thie U^ the giMitlnoan \vfu> romioiinicitiil l(> us, the stateiuoiit 
inhracotl in the piibhi\ition of M:ty ,">t|j, to a«'(ioi»int you now with live tact, 
\:i\ l»!uin}vhe;u\l ot" iiiy nlufial to give up his naioo, lie iinmciliaU-ly adihvsscil 
o ino a note, desiriun' iiiu-iiunocally, (hat I shonlkl not lu- rcstvainotl by any 
onsideiatioos of (U'lieaey towards l>im from giviiij;- liis name to tho court, as 
U was his intention, in ninkinj;' his note ot'May 6, "private,'* only to witliiioKl 
.1 i n.iini- tiom llu- newspaper. This is due to the frankness of the };vntloman 
uakinj^' llu- eonununic!Uit>ii.and \ou will have th(> f;-oodntss to plaee it bit'oiv 
111- court — althou;4'h I do not, by tin- permission wbieh he {"ives, ((.-el nvyselt" 
i*>-.nl>, ,! >'\-t\\\ liw- I'Mi.;-!'! \M whieh regulated n\) answer yesteixlay. 

I am very rospectiolly. 

Your ol>edieiil t v ■■■t. 
>\. \'' 

i.Mcn.AUi) ^. tt)\i., r.sii 

(ii(fp:e J(fi<vuf< of l.hr iXiutti Vourt-nnfit . 

* Vote.— Tho ofTioiid rreord of the late i oou m impiuy, tianviimteu i \ i;i' 
uij^'c advoe!»to to tho N.ivy Ucpttrtmeni. 

1^ NCTB. — The olVieisil record, \ipou vh'oh the witness had been examinet?., 

• ■ < t" ••>>■- f;i>si time. pn>ihieod; »ud its uppearanee sni>iyi"stod some iui- 

. which ivquiivd a more nitiuite eoniparison of its cuntvnts, 
, -IMS, tl)an eould he acramplllied at the moui*nt. 



63 
THURSDAY, Jiihi L'H. 

f'l)« roiirf met. puisiiant to the udjoui iiituMit (il yestoidity ; })re 
Mill, all till! iiifMiil)»'r,s of llio cuutt. the JM(lj!,c o'lvnculo, and rap- 
faiti Porter. The iiiiiiutis ol Jlic proceed iiij;;8 of }esteiduy were 
H'«d. 

Ml'. flAniitsoN lifinp; a-^ain called, by the accused, was, by him, 
tiltcifo^ated as tollows: 

Q. Fxauiiiie the several interlineations and erasures, in the lo- 
eord proved by yon ynstenlay, as yonr tiansciipt liom the oii<;i- 
nal minutes (»i (Ih> judtfc advocate, at pn^es 7, B, '21, '.!.), '2(5, ."I, 
32, 38, 41), the adjournment at paj;;e LJH, and the note at (he bot- 
tom of the paye 11, and aay by wliom they appear to have been 
made P 

A. The inlerlineatioiiH appeal- to be in liie lumd-writinp; (d' Mr. 
Coxe ; I ennnot say whetlier tlie erasures were maile by him or 
by myself; the adjoui nment. at piii;e 38, is in my own hand-writ- 
inj!,; tlie note, at pa<;e 'II, is in the liand writing- of Mr. Coxe ; the 
(7) in paf;e H , is, 1 believe, Mr. C-oxe's. 

Q. Can you reeollect, with cei-(aintv, whether the orii^iiial min- 
utes, when j;iven you to copy, Lad in them liie words aiitl pawsa- 
5;es which now appear interlined, erased, and added, at the pages 
above mentioned, ot the said transrripi i' 

/\, 1 do not know that I tan with cerlainty. 

(^. Kioin your recojlectiiui oS" llii» t.',enei-al aectir.icy, or inaccu- 
racy of your l.ranscript, as (u ii;inally made, can you say tliat you 
Miadc the mistakes whi( h tiies'e alterations, now appearing on the 

' »' of the transcript, indicate ? 

A. I cannot say that I made all of tlicin ; 1 know that I made a 
considerable number. 

Q. Refer more particularly to (lie interrnieati(Mi al pa]i>;e 7# and 
the note at the bottom (d pa;ji,e -I I, ami say whether you have any 
recollection of having made those mistakes? 

.\. I cannot say whether or not it was my omission. 

Q. When <lid you first see that ])art of the r(u-.ord j;;ivin;;; tin; 
last day's pioceedinms, slated as in the hand-writing; of the jii(I<>;e 
advocate r and do you know any thinj; of the penciled interlino.1 
tian, in the second paragraph oi" the same.'' 

A. I do not recollect seeinj;- that part of tin; procei'dings until 
if washlii'wn me yesterday, and I know nothing (d' that itilerlinea- 
tion ; all that I recollect, is, that when I called, as ysual, (or the 
proceedings of that ilay, i was iiilormed by Mr. Coxe that it was 
copied by him (or the purposd of being (ran^mitted to the depart- 
menf, or W(mi1s to that ••(lect ; I do not think L saw the iiroceedings 
of fhat day, at all, until I saw it yesterday. 

Q. (liy the judg« advocate.^ llave you any recollection ul" my 
making, on one or more occasimia, so many corrections in your 
transcript, that you proposed taking it ba( k with you to make a 
fairto|)y.^ and what passed on that occasion ? 

A. i do recfillect there were so many coirections in one day's 
work, as ro induce, me to ask to recopy it; your reply was, that, 
there was not (hen time ; thatyf<n had to capy them out with you 
lo the court, to re<id them as tlie prvceodings of the cyurl. 



64 

Q. [On the part of the accused%'] Did you ever make more than 
one c<)|)j ol the record ? 

A. 1 have no recollection that I ever did; I think I may have 
made other copies .ot the papers exhibited by commodore Porter, 
but r think I never did for the record. 

Q. Ldtik at the sheet now shewn \oij, and say if it be in your 
hand- writing; at what time you copied it ; whether before or after 
y(»vi made liie transcript for the joilge advocate; atid from what 
paper, the original, uv your transcript, did you copy it? 

[Tlie witness is here shown a loose sheet, purporting to be a co- 
py of so nuicli of tiie record as begins with tlie words, "tiie room 
was cleared,'' on page s21. and ends with the words " ten o'clock 
to-morrow uiorniug," on page 24.] 

A. 'I'he papptM- is in my haiid-writing, and I have a perfect recol- 
lection of the circutnstances under which I copied it ; when I gave 
the answer I did just now, I thouuht the paper 1 had made tw(» co- 
pies of, was an original paper submitted by commodore Porter; I 
now lind it was an answer to one of his papers. I copied this be- 
foie copying the record from the minutes of the judge advocate, 
for tlie use, as I understood, of commodore Porter, by the direc- 
tions of Mr. Coxc ; and it was, 1 believe, the only paper I copied 
in his oflice. 

The judge advocate statwl (hen, that, if there was nothing fur- 
ther ready on the part of the accused, he should now offer the de- 
position of Mr. Monroe, in answer to the interrogatories hereto- 
fore sent to him. 

The accused desiring to see the papers which it was proposed to 
submit to the court, the same were handed to him by tiie judge 
advocate, and, after being perused, were returned. Tliey were ac- 
cordingly [no objection having been made,] read, and submitted 
to thticourt as follows : 

1st. The letter from Mr. Monroe to the judge advocate, dated 
July 25th, 1825. 

2d. The interrogatories, cross-interrogatories, and answers 
thereto, sworn to before Mr. J. Bailey, a magistrate in Loudouu 
county, Virginia, July 25, 1825. 

3d. The cf>py of aiiotefrom captain Porter to Mr. Monroe, da- 
ted May 10th, 1825. 

■Ith. Copy of Mr. Monroe's answer, dated March 12th, 1825. 

5th. Captain Porter's reply, dated March 12th, 1825. 

Gtli. Certified copy of a letter from the Secretary of the Navy, 
dated 2lst October, 1824, to commodore Porter. 

At the request of the accused, the following letteis were annex- 
ed to the record, and marked. 

1st. Secretary of the Navy to comniodo.re Porter, 19th Aug. 
1823. 

2(1. Secretarv of the Navy to commodore Porter, 30th Septem- 
ber, 1823. 

oi\. Commodore Cliauncey, [acting Secretary of the Navy,] to 
commoilore Porter, 23d Outober, 1823. 

4tli. Commodore Porter tx) S(>cretary of the Navy, 28th Mav, 
J 824. 



65 

it wa3 also agreed that tlie documents, annexed to the originai 
record, as j;iven in evidence before the court of inquiry, are en- 
dorsed, and numbered by commodore Chauncey, the President of 
said court. 

The court adjourned till ten o'clock to-morrow morning. 

FRIDAY, Juli/ 29. 

The court met, pursuant to the adjournment of yesterday; pre- 
sent, all tlie members of the court, (excepting captain Biddle,) tlie 
judge advocate, and captain Porter. 

Captain Spence stated that captain Biddle was prevented by 
sickness from attending to day. The minutes of the proceedings 
of yesterday were read. 

Captain Porter stated to the court, that Mr. Jones, his counsel, 
was engaged in the necesr^ary arrangements, and business of this 
case,* and that he had nothing, at this time, to lay'before the court. 
Whereupon, the court adjourned till ten o'clock to-morrow morn- 
ing. 

SATURDAY, Jul?/ 30. 

The court met, pursuant to the adjournment of yesterday; pre- 
sent, all the niembers of the court, (excepting captain Biddle,) the 
judge advocate, and captain Porter. 

The President announced to the court, that, although captain 
Biddle was much better than he wua yesterday, he still continued 
too much indisposed to resume his seat. 

The judge advocate then submitted, and read to the court, the 
following documents, some of which were presented at the request 
of captain Porter, the residue by the judge advocate, to complete 
the chain of the correspondence. 

1. Copy of letter from Smith Thompson, Secretary of the Na- 
vy, to ctjma^odore Porter, dated Navy Department, 19th Augusts 
1823. 

2. Copy of letter from Samuel L. Southard, Secretary of the 
Navy, to captain Porter, dated Navy Department, 29th Septem- 
ber, 1823. 

3. Extract of a letter from Hon. Secretary of the Navy, datqd 
;)Oth September, 1823. 

4. Copy of letter from 1. Chauncey, acting Secretary of the Na- 
vy, to commodore Porter, dated Navy Department, 2§tb October, 

823. 

* Note. The counsel was, at this time, eogag'edin a laborious exajnination 
ofa volununous mass ofdociiments, consisting of the official correspondence 
between commodore Porter and the Navy Department, and with the officers 
oTthc navy under his command ; of Fresidential messages, and official reports 
of the Secretary, with the ac(ompan)ing documents, communicated by the 
President to Congress ; all running llu'ough the years 1823 and 1824 : in order 
to select, from the mass, sucli as were pertinent to explain and rebut the vKVi 
rraUevs advanced ii'. Mr. Monroe's deposition, 

9 



66 

5. Extract of letter from connuodore Porter to Hon. Secretary 
of the Navy, dated 19tli November, 1 8:23. 

6. Extract of instruction^ from Hon. Secretary of tlie Navy 
to commodore Porter, dated December, 18:33. 

7. Copy of letter from Samuel L. Soulliard. ^cretary of the 
Navy, to commodore Porter, dated Navy Department, 17lh May, 
1824. 

8. Copy of letter from D. Porter, to Hon. Secretary of the Na- 
vy, dated" Sea Gull, Matan/as, £8th M;ty, 1824. 

9. Copy of letter from Sanuiel L. houtliard, Secretary of the 
Navy, to comriKKlore Porter, dated Navy Department, 31st May, 
1824. 

10. Copy of letter from commodore D. Porter, to Hon. Secre- 
tary of the Navy, Washington, 25th June, 1824. 

11. Copy of letter from Charles Hay, for Secretary of the Na- 
vy, to commodore Porter, dated Navy Department, 29th June, 
18'24. 

12. Copy of letter from commodore Porter to lion. Secretary 
of the Navy, dated Washington, August 11th, 1824. 

13. Extract of a letter from Charles Hay, [handed in by commo- 
dore Porter,3 to commodore Porter, dated Georgetown, D. C 
nth September, 1824. 

14. Copy of letter from Samuel L. Southard, Secretary of the 
Navy, to commodore Porter, dated Navy Department, 14th Oc- 
tober, 1824. 

It was also agreed that fhe official rep<rrts of lieutenant Sloat, 
and the accompanying documents, and correspondence printed in 
the pamphlet,^ from p^ge 100 to the end of that publication, be 
submitted to the court, as if given in evidence on fhis trial. 

It is also agreed, that the following note, published in the Na- 
tional Journal, of June 14th, 1825, being tlie anoiiymous publica 
tion, or riote, referred to in captain Porter's letter to the Secretn 
ry of the Navy, of June 14th, 1825, and in the te.->timony of Peter 
Force, and which it is admitted was communicated to tlie editor 
of the said National Journal, by U.S. Coxe, esquire, judge advo 
cate to the court of inquiry therein mentioned, with authority to 
communicate his name, as the author of it, when applied to for 
that purpose, be annexed to the record, as evidence in this case. 

•' To the Editor of the National Jourtial. It appears necessarv 
to apprise the public, that (be recent publication of commodore 
Porter, on the subject of the pntceedings of tlie court of inquiry, 
in relation to the affair at Foxardo, presents so inaccurate and 
imperfect a view of that matter, that it will, in due time, receive 
jjroper attention. The record of the court, and statement of the 
facts, transmitted to the executive, not having yet been made 
public, it being understood that the business had not been termi- 
nated, furnished sulTicient reasons for postponing to a more suita- 
ble period, the rectification of the errors and the supplying the 
deficiences, which exist in the pamphlet referred to.'' 

Jime 15th, 1825." 
^ The reading of the documents having been cofnph'tcd, the couW 
a'djourned until two o'clock on Mon<lay, 



67- 

MONDAY, August I, 

The court met pursuant to the adjourninent of Saturday; pre- 
sent all the members of the court, the jutl^je advocate and captai'a 
Porter. The minutes of the proceedings of Saturday were read. 

Captain Porter stated, that his counsel not having yet complet- 
ed the defence which he proposed to submit to the court, requested 
the further indulgence oi the cu.urt until to-morrow at twelve 
o'clock, by which time he would endeavour to be prepared. 

The jiuige advocate then read and submitted to the -court, cer- 
tain documents frou) the Navy Depaitn-ient. 

1st. Co|)V of a letter from commodoie Porter to hen. Samuel 
L. Southard, dated Washington, October 12th, 1824. 

2d. Copy of a letter trom same to same, dated Washington, 
October 19lh, 1824. 

Captain Porter then objected to the reading of these letters, or 
more of this kin.d, that they had no relation to, or connexion with 
the charges or spociticaiions ; that he was prepared to meet any 
other charge which either now, or at atiy future time, miglit be 
preferr»'d for any pai t of his conduct, but that he was now with- 
out his counsel; he, of himself, objected to the production of this 
testiiivony. 

Tl)e judjrv advocate rematiked, that tiie letters were offered as 
the answers to letteis read on Saturday, or as letters to which 
some of them were answers; that a part of the correspondence 
Ixiviny; been read, it seemed pt-oper to submit the resiilue of it. 

The ccuirt being cleared, proceeded to deliberate upon the ques- 
tion; and after some time, it was opened, when the resolutioi; of 
the court was announced, that the papers should be read, but that 
the court would a(.!';:»urn until to-morrow, that the counsel for the 
accust^d iniglu be present at the reading of the same. (a J 

[vV'ith this day's proceedings, ends the assistance afforded us by 
tiK'otiicial minutes of the couit's proceedings: not having been able, 
tor reasons staled, to get access to the subsequent record of the pro- 
ceedings. — This leaves a chasm of a few days, till the delivery of the 
defence, afcer \i liicli, the published proceedings will enable us to 

(«) Note. — We omitted to introduce, at the ])roper place, the correspon- 
deiice bolween the Secrclary of the Nav}-, ami Gales and Seaton, -edltcjis ot 
The Xauoiial intellig-encer, reierred to in tiic first part of Mr. Seaton's evi- 
dence, as ex[)lainiiig- the nature of the prixilege he claimed, not to disclose 
the name of anoii}inous correspondents. (\'id. ante, p. ol.) We have not 
been able to procure copies of the Secretary's notes to the eililors; but their 
contents are suincientlyintellig-ible. from the answers o,f the editors: 

" OJ/ici: of iJie Naliviiiil hifel/igencer, 
"J//?v7lf), IS25. 
" r.ales & Seaton have the pleasure to acknowledg-e the receipt of the not? 
of tlie lion. Hecretary of the Navy, reiiue.stlng' theui " to inform him from whom 
tiiey receivedthe correspondence, which was published in the Daily National In 
telllgencer, of tile oOtli Mar^'h last, purporiiiig- to be a corresixindence be- 
tween tile Secretary of the Navy and commodore D. I'ojier." liales &. Seaton 
h:ive the lionor to state, in re])ly to this note, tiial the copy of the correspon- 
dence was received from an oflicer of the Navy. If it be not pcenuit\e, or be 
incorrect, the name of the communicKtor will be instantly <liscl';s('.d to th*' 
Secretarv of the Naw. 



68 

complete the report, in the language ofthe court itself, and in the 
words ofthe record. Indeed that is the only part of the minutes, (ex- 
cepting of course the documentary and oral evidence,) which it 
was, at ail, material to pursue in this report. We had determin- 
ed, at first, to disregard the form of a journal, observed in the 
record, and merely to arrange and embody the evidence, with a 
condensed view of the othet proceedings ; — but, at length, con- 
cluded that it would be more satisfactory to give a detailed histo- 
ry of the trial, in the form of the official journal, as far as a liter- 
al copy of it, supplied the materials of a lull report. In the in- 
terval between this day and the delivery of the defence, there 
was only one on which any business vvas transacted, more than 
the formal meetings and adjournments of the court; and of the 
transactions of that day, we shall be able to give a satisfactory 
report.] 

TUESDAY, August 2. 

From the last day's proceedings it appears, that the judge ad- 
vocate had offered and read certain documents, to which commo- 
dore Pot ter had objected. Thejudge advocate had also offered a con-« 
sulerable numbif'*- of other documents, supposed to be of the same 
description, as being a voluminous official correspondence be- 
tween the commodore and the navy department, relating to prior 
transactions, and having no connection, whatever, with any mat- 
ter embraced in any of the charges and specifications. The de- 
cision ofthe court, that they should be read, is not very distinct- 
ly stated, whether absolute, or depending upon cause to be shown, 
the next day, when the commodore's counsel should attend. The 
latter was, after some explanations between the counsel and the 
court, aflmitted to be the intent and effect of the order : and the 
counsel accordingly proceeded to draw up a written exception to 
the admission both of the documents offered yesterday, and of those 

The Secretary in a second note to the editors, insisted on his right to de- 
niirid the name ofthe person, who had communicated the papers in question, 
if an officer of the navy -. to which they repUed ni the following- note — 

" Office of the National Intelligencer, 
« Jpril 19, 1825. 

"Gales & Seaton present their respects to the hon. Secretary of the Navy, 
acknowledging the receipt of his note of the date of yesterday. In seeking 
for their readers, from soorces accessible to them, information of an authentic 
nature, concerning a matter already spread before the public, by official docu- 
ments, they were not aware that they should for themselves, or for the gentle- 
man who kindly furnished the copies of the papers referred to, incur the dis- 
approbation of the department. 

"The authenticity of those papers not being questioned, and the name ofthe 
officer being desired, it would appear, only to disapprove of his conduct, the 
editors, being unwilling to comproniit an} one for a service rendered to them, 
if not the public, take leave most respectfully, to decline a compliance with 
the request of the hon. Secretary ; assuring him attlie same time, with great 
sincerity, that there is not an officer in this government, to whose known 
wishes. It would give them greater pleasure at any time, to accede. 

" P. S. It can hardly be necessary to state, that, in coming to the conclu- 
sion above stated, G. &, S. have not held any consultation wiUi their corres- 
pondent, who furnished the papers in question." 



offered in addition to day ; consistinj; of a variety of letters, of 
the description above mentioned, VVe have no C(t|i) of this ex- 
ception; which, in substance, turned upon tlie f(>ll(»vving points: 

"The apology for offering these letters, at ihis stuije of the tri- 
al, is, that tliey are 'answers to letters read on Satuiday, or let- 
ters to x^hich some of them were answers.' But, after a careful 
inspection of theiii, it is not perceived tliat they come under either 
description, in relation to any letter produced on the part of th« 
commodore. It was apparent that the judge ailvocatc was. on Sa- 
turday, and had been long before, in [lossesriioii of the whole se- 
ries of correspondence between commodore Porter and the navy 
department; and he had, on Saturday, exercised his discretion, 
"without control or interference, in e,\hibitin<^ such parts of tiie 
same as were pertinent to, and explanatory of, such parts of the 
correspondence as had been exhibited on the part of the comtno- 
dore. The additional letters oft'ered yesterday, (Mond.iy.) and 
again to day, are foreign, (as will be obvious to the court i>n an 
inspection of the same,) not only to any of the matters comprised 
in the charges and specifications, but to any of the collateral ex- 
planations brouglit forward by the commodore. It is n»)t perceiv- 
ed that any one of them even prolesses to be a letter either di- 
rectly answering to, or answered by any one ^o produced by the 
commodore : nor is it pretentled that tljey are, at all, necessary to 
explain what goes before. The only <lesign or tendency, to be 
Conjectured from their import, is to raise a prejudice, by intro- 
ducing long-past, and, as it was thoui^lit, l(»ng adjusted discus- 
sions : which, if to be revived for anv purpose, should have been 
brouiiht forward in the form of additiuna! or independent charges 
or specifications. If they be thought competeiit to support any 
such charges or specifiiations, comiuodore Porter has professed 
himself ready to meet them, wiien he shall be properly called to 
account, for any exceptionable matter that may be supposed to 
be contained in the correspondence now ollered. But it is hiiiji- 
)y inconvenient and unfair to load the present trial with this mass 
of collateral and irrelevant matter. It perplexes and embarrasses 
the party in his defence ; imposes upon him a necessity to answer, 
by long and laborious explanations, matters of winch he is not ac- 
cused : and, from the most satisfactory and trium])hatit answer to 
which, he can derive no positive advantage, to his main defence: 
while he runs the risk of encumbering tlie real merits of his case 
with doubt or prejudice, by failing to explain ai;d rebut, with the 
rerpiisite clearness and conclusiveness, collateral matters of crim- 
ination, thus unexpectedly brought against him ; which are n(»r pre- 
tended to come within the scope of the promulgate<l cliaiges and 
specifications ; — and of which he had not any nutic*', whatever, 
(ill this late hour, when actually eri:ia<red in arraniiir."; his final 
deience. 

It is distinctly admitted that far the greater part of the docu- 
ments and correspondence, recently pioduced bv commodore Por- 
ter, is equally foreign and irrelevant to the real n^atter of the 
charges and specifications originally exhibited against him, and to 
the legitimate scope of a defence, limited to si!', h charges and ^pe- 



70 

cifications. But, at a late atage of the trial, after the evidence, 
OK both titles, at all |)ortinei!t to tlie peiidiiiij; chaiges aiid spccili 
cation.-^, had been cumpletely exhausted, the deposition of Mr 
JMoiiioe hail been intiixlijced, on the part of the piosecution ;iip 
j)in;;; up old, and [as if was thoui^ht,] long adj.isted topics of dilfei 
ence and discussion ; and, in short, aniountirii; to an exhiljition of 
new and distinct matters of crimination or blame ; which, from tlie 
matters thcntselvos, an<l the manner of trcatinij; them ir; the depo- 
siti(>n, and fioin the character and circtnnstances of the party, by 
whom Uiey were pn)pounded, itnposed upon the commodore ai. 
indispensable necessity to explain and answer them.* To tiiis ne- 
n>ssary explanation, by way of a defenie, strictly confined to 
these new and c(dlatera] matters of ciiaige, had the selection of 
JettHTS ort'ered by commodore Porter, on Thursday and Saturday 
la*t, been tonfitied.t 'Tis true enough that the deposition was 
wholly irregular, inadmissible, and illet!,"il. botli in its caption, and 
in its sul»stance. Let the facts, which it purported to piove, be 
ever so ujaterial and pertinent to the issue, nothing was more il 
legal, or improper, than to ofier pi oof of them, in the ft>rni of a 
v/ritten affidavit, instead of the examination of the witness in open 
Coart : anil if such an aflidavit were admissiblo to prove any ("acts, 
still there was not one proveii by this deposition, tiiat was, at all, 
material ur pertinent to (he issue, 'i'he deposition should there- 
fore have been rejected, if exception had been taken to its admis 
sion >• but from the imposing name and ciiaractcr of this evidence, 
and the general curiosity and expectation which it had excited, the 
accused knew not what popular infertnces might have been drawn, 
lioni the suppression of it, through his nieans. He therefore pre 
ierretf letting it ptss, uiujuestioned, and taking upon himself the 
burthen of an additional and coliateial justification against itsiin 
putalions, both direct and implied, lie had thus been drawn in 
to the discussion and exiiibition ol matters, irrelevant to the ori 
ginai charges; in answer to collateral aiul irrelevant imputations 
advanced bv the prosecution. I5ut surely tliis could be no war 
rant for pushing the aberration, fi'oui the matter in issue, to any 
further ext If niPs, Surely the accused could not be held to tole- 
rate the unlimiied addition of i|ew burthens, because he had not 
revolted against the lirst (ransgresj-ion of the prescribed limits (if 
the accusatbi>n. He thei'efore took his stand, at this point; and 
insisted tliat tlue accusations, which he was to answer, slu)uld, 

* Ntr*K. l"or the time and manner of introducins;- tlvi^ deposition, vide niin- 
ules of prncec(iin;j;:; for 'f!misday,,loiy 2ij, t'.iitc p. fit. 'I'Ue iuterrogatoi-ic? liud 
been dcspiitclied, by the }\\d'^c advocutc to Mr. Monroe, on Fnitiiy, the :2Jd. 
oi- Satmxhu, the 23d. ^V ide :inlc p. 49, 50.) At the opening of the convt, in 
tiiri morniiiij of iMondav, the l;5th, ttic judge advoeiitc btated tluU he had not 
received the (fepo.-iiion : (^ldc ;une p. 60,) l)ut \vJ;eii it -was aettrdiy received, 
\v:is never announced; nor liaJ the :;ccused any notiev whatever et" its reccp- 
ti(ni, till it v.us prodneed and lead in e\iuei)ee, on 'i'hmsday the 'J8lh, as l)c- 
fore stated. It w;vs reported, :oid l)dtived, that tlie messenger had amved 
with tlie deposition, either in the eom^e cf '.he day on Monday, or on th(7ne.v. 
moiniiig-. 

t A'id-; aiitc p. 61-5--6. * 



71 

henccfortli, be limited to such as had already bee^i advanced,'^! 
ther in tlie orij:.iiial cliar^fes, or in Mr. Motiioe's tlep<»sitiou." 

S'.icli sveie t!a; substance and cttoct, as now recollccled, of the 
objec lions ur;:;ed on tlie part of commodore Porter. 

The decision o( the court, after cctnsiderable deliberation, in 
closed door.-,, was announced. It boie.in substance, that, though 
great latitude had already been taken in the exhibitiitn of irrele- 
vant testimony, the court had resolved to stop ai this point ; and 
the documents otiereil by the judii;e adv(jcate, and objected to by 
commodore Porter, were njccted. The decision did not, as it was 
understood, include Mi-. Monroe's tleposition, as among the evi- 
dence, so censured as irrelevant ; but it was. urxlerstood as clearly 
including the docunients, that h;>d been oflVred on the pj»rt of the 
commodore, in answer to that depobition. It may, possibly, have 
included both. 

When the nature and contents of the documents, so exhibited 
by commodore Porter, c.(»me to be seen ai;d compared with Mr. 
Monroe's deposition, it is respectfully submitted, tliat tlie injus- 
tice of selecting them out for censure, or even of involving tluru 
in a c(miioon censure, with the deposition, will be obvious, i'he 
only question could have been, do they refyte or explain any im- 
putation, expressed or iiuplied by the (leprtsition ? If they do, then 
'tis clear that the censure, lor a departure from the u alter in is- 
sue, rests upon the introduction ol'the latter document, exclusive- 
ly ; and not upon documents which it had made necessary to the 
defence. This questioi^ is confidently referred to the decision ot 
the documents themselves; which are presently to be set forth. 

It may be alsu proper to record, in this place, as connected 
jvith the subject of these disputed documents, that no prior inti- 
matiot) whatever, of any intenfion to oli'er such, had been given to 
'the accused or iiis counsel. On Friday, the 22d July, Mi". Boyle, 
a clerk in the navy department, was called and examined, to au- 
thenticate a large mass of papers; of which no description was 
given at the time, or entered on the minutes, further tlian what 
may be collected from Mr. Boyle's answer- ; oamely, that they con- 
sisted ol a voluminous correspondence between the nav\' depart- 
ment aiid oommoiioie Porter-; but what, or- how many letters wer-e 
comprised in such ciM-respondence, tlie record does not, to tliis 
day, iiilono us.(^«j It was obvious to every orie, who saw the mass 
of papers liairded to Mr-. Boyle, and, indeed, it is proved by his 
answer, tliat it contained very many more thair the four- renraining 
letters, r-eferred to in the lii-st specification of the second diiar-ge, 
whicii were tlien read by the ju(lge advocate. 

, Comiriodore Porter's counsel lefjuested a list of the documents 
that had been authenticated by Mr. Boyle ; he was answered that 
there was no list. He then asked to look at the docuniciits; but 
Wiis answered that it would be tiiire enough to exhibit them, when 
oftered to be read in evidence. At the request of comnrodore Por- 
ter, vvlio had determined, as f;ir as possible, to avoid raising any 
more (|uestions upon collateral poirrls, all further- discussiT)rr on 
the subject was waived : and the documents remained in thtJ cu>* • 

fn) Vide Ml-. 1!o\|., 's exiOTiliiEition. ante p. -1^'. 



As well on the part of the prosecution, as of the defence^ 
under the several charges and specifications. 

Charge First.— DISOBEDIENCE OF ORDERS, &c. 
FOXARDO AFFAIR. 

(No. 1.) ' 

^Letter of instructions from the Secretary of the JSTavy ; which 
are produced as the orders ivhick Commodore Forteris charg- 
ed with having disobeyed.'] ^ 

Sir ^^^^ DEPARTMENT, February 1, 1823. 

You have been appointed to the command of a squadron, 
titted out under an act of Congress, of the 20th December last 
to cruize in the West-India seas and Gulf of Mexico, for thepur- 
pose of repressing piracy, and affording effectual protection to the 
citizens and commerce of the United States. 

Yourattention will, also, be extended to the suppression of the 
slave trade, accordina; to the provisions of the several acts of Con- 
gress, on that subject; copies of which, and of the instructions 
heretofore given to our naval commanders thereon, are herewith 
sent to you. 

While it is your duty to protect our commerce against all un- 
lawful interruption, and to guard the rights, both of person and 
property, of the citizens of the United States, icherever it shall 
become necessary, you will observe the utmost caution not to 
encroach upon the rights of others ; and should you, at any time 
be brought into discussion, or collision, with any foreign power" 
in relation to such rights, it will be expedient and proper that the 
same should be conducted with as much morf^rafjon. and forbear- 
ance,^?; is consistent with the /iowoiir of your country, and the 
J2ist claims of its citizens. 

Should you. in your cruize, fall in with any foreign naval force 
engaged in the suppression uf piracy, it is desirable'that harmony' 
and a good understanding, should be cultivated between you : and 
you will do every thing, on your part, that accords with the honor 
ot the American flag, to promote this object. 

So soon as the vessels at Norfolk shall be ready for sea. you 
wil proceed to the West-Indies, by such route as vou shall iud-e 
best for the purpose of effecting the object of your cruize. You 
will establish, at Thompson's Island, usually called Key-West 
a depot, and land the ordnance and marines, to protect the stored 
and provisions; if. however, you shall find any important objec- 
tion to this place, and a mora suitable a.ul convenient one can be 
round, you are at liberty to select it as a depot. 



75 

You will announce your arrival and object to the authorities, 
civil and military, of the island «)f Cuba, and endeavor to obtain, 
as fur as shall be practicable, their co operation ; nr, at least, their 
favorable and friendly support, giving then» the most unequivocal 
assurance, that your sole object is the destruction of pirates. 

The system of piracy which has grown up in the West-Indies, 
has obviiiusly arisen from the war between Spain and the new go- 
vernments, her late provinces, in this hemisphere ; and from the 
limited force in the islands, and their sparse population, many 
portions of each being entirely uninhabited, and desolate, to which 
the active authoriti/ of the governme)tt does dot extend. It is 
undei stood that establishments have been iv.adc by parties of these 
banditti, in those uninhabited parts, to which they carry their plun- 
der, and retreat in time of danger. It cannot be 'presumed, that 
the goverun»ent of any island will afford any protection, or coun- 
tenance, to such robbers. It may, ot» the contrary, confidently 
be bdieved, that all governments, and particularly those most ex- 
posed, will attord all means in their power for their suppression. 

Pirates are considered, by ihe law of nations, the enemies of 
the human race. It is the diiti/ of all nations to put them down ; 
and none who respect their own character, or interest, will refuse 
10 do it, much less afford them an asylum, and protection. The 
nation that makes the greatest exertions to suppress such banditti, 
has the greatest merit. In making such exertions, it has a right 
to the aid of every other power, to the extent of its means, and 
to the enjoyment, under its sanction, of all its rights, in the pur- 
suit of tlie object. In the case of belligerents, where tHc army 
of one party enters the territory of a neutral power, the armj' of 
tiie other has a riglit to follow it there. In the case of pirates, 
the right of the armed force of one power, to follow them into 
the territory of another, is more complete. In regard to pirates, 
there is no neutral party ; they being the enemies of the human 
race, all nations are parties ag;tinst them, and maj be considered 
as allies. 

The object and intention of our government is, to respect the 
feelings, as well as the rights of others, both in substance and in 
forui, >n all the measures which may be adopted to accomplish the 
end in view. Should, therefore, the crews of any vessels, which 
you have seen engaged in acts of piracy, or which you have just 
eanSi' to sunpect of being of that character, retreat into the ports, 
harbours, or settled parvs of the islands, you may enter, in pur- 
suit of them, such ports, harboius, and seltled parts of the coun- 
try, for the purpose of aiding the local authorities, or people, as 
t!ie case may be, to seize, and bring the of!enders to justice ; pre- 
viouslv giving notice that this is your sole ol)ject. Where a go- 
Vi'rnmi'ut e.visis, and \sfi'lt, you will, in all instances, respect the 
local authorities, and cmly act in aid of, and co operation with 
them; it being the exclusive purpose of the government of the 
United Slates, to suppress piracy; an object in which all nations 
are e(|Ually interested ; and, in the accomplishment of which, the 
Spa)iisk authorities, and people, will, it is presumed, cordially co- 
operate with you. If in the pursuit of pirates, found at sea, they 



70 



shall retreat into the unsettled parts of the islands, or foreign 
territory, 30U are at liberty to pursue them, so long oidy as there 
IS reasonable prospect of being able to apprehend them; and, in 
no case, are you at liberty to pursue and apprehend any one, af- 
ter having been forbidden so to do, by competent authority of the 
local government. And should you, on such pursuit, apprehend 
any pirates, upon land, you will deliver them over to the proper 
authority, to be dealt with according to law ; and you will fur- 
nish such evidence, as shall be in your power, to prove the offence 
alleged against them. Should the local authorities refuse to re- 
ceive, and prosecute such persons, so apprehended, on your fur- 
nishing them with reasonable evidence of their guilt, you will, 
then, keep them, safely and securely, on board some of the ves 
sels under your command, and report, without delav, to this de- 
partment, the particular circumstances of such cases." 

Great complaints are made of the interruption, and injury to 
our commerce, by privateers, fitted out from Spanish ports. V ou 
will endeavour to obtain from the Spanish authorities, a list of the 
vessels so commissioned, and ascertain how far they have been 
instructed to intercept our trade with Mexico, and the Colombian 
Republic; impressing upon them, that, according to the well 
settled rule of the law of nations, the United States will not 
consider any portion of the coast upon the Gulf of Mexico, as 
legally blockaded, except where a naval force is stationed, suf- 
ficient to carry into effect the blockading order, or decree; and 
that this government does not recognize the right, or authority of 
bpain, to interdict, or interrupt our commerce with any portion 
ot the coast, included within the Colombian Republic, or Mexican 
Government, not actually blockaded by a competent force. 

All the United States ships and vessels of war, in the West- 
Indies, of which a list is herewith enclosed, are placed u;ider 
your command, and you will distribute them to such stations as 
shall appear to you best calculated to afford complete protection 
to our commerce; in which vou will embrace the object of pro- 
tecting the convoy of specie, from Vera Cruz, and the Mexican 
coast, generally, to the United States. Keep one vessel, at least» 
upon this service, to be at or near Vera Cruz, during the healthy 
season of the year, and to be relieved, as occasion shall require, 
both tor convoy of trade, and to brin- specie to the United States, 
confanmg the transportation to the United States onlv. 

You will be particularly watchful to preserve the health of 
the othcers and crews, under your command, and to guard, in 
every possible manner, against the unhealthiness of the climate; 
not permitting any intercourse with the shore where the yellow 
tev^er prevails, except in cases of absolute necessity. 
Wishing you good health and a successful cruize, 
1 am, very respectfully, sir, 

Your obedient sei vanr, 

SMITH THOMPSON:. 

Com. David PonxEn, Commandhig ^ 

U. S. Naval Fum; IVest-Indifn, Present. \ 



77 

(No. 2.) 

[^Commodore Porter^s official report of the affair at Foxardo.^ 

United States' Ship John Adams, 

Passage Island, J\'ovenib r 15, 1824. 

Sir: I have the honor to inform you that, on my arrival at St. 
Thomas', I was informed that lieutenant-commandant Piatt, of 
the United States' schooner Beagle, who had visited Foxardo, a 
town on the east coast of Porto Rico, about two miles from the 
sea, for the purpose of making inquiries respecting a quantity of 
dry goods supposed to have been deposited there by pirates, was, 
after being recogni/,ed as an American olhcer, by the proper au- 
thorities there, imprisoned and shamefully treated. 

Indignant at the outrages which have so repeatedly been heaped 
on us by the authorities of Porto Rico, 1 proceeded to this place, 
where I left the ship, and, taking with me the schooners Grampus 
and Beagle, and the boats of the John Adams, with captain Dal- 
las and part of his officers, seamen, and marines, proceeded to 
the port of Foxardo, where, finding preparations were making to 
fire on us from the battery on shore, I sent a party of seamen and 
marines to spike the guns, which was done in a tew minutes, as 
the Spaniards fled on the landing of the party. I then landed 
with two hundred men, and marched to the t<»wn, spiking on the 
way the guns of a small battery, placed fur the defence of a pass 
on the road, and reached the town in about thirty minutes after 
landing : 1 found them prepared for defence, as they had received 
information from St. Thomas' of my intentions of visiting the, 
place. I halted about pistol shot from their forces, dravi-n up on 
the outskirts of the town, and sent in a Hag, requiring the Alcalde, 
or governor, with the captain of the port, the principal offenders, 
to come to me to make atonement for the outrage; giving them 
one hour to deliberate. They appeared accordingly, and, after 
begging pardon (in the presence of all the ofFfcer?,) of the officer 
who had been insulted, and expressing great penitence, 1 permii- 
ted them to return to the town, on llieir promising to respect all 
American oflicers who may visit them hereafter. We then re- 
turned to the ve&:jels, and left the harbor, after being at anchor 
three hours. 

As we were getting under way, a number of persons a}>pcared 
on the beach, bearing a white fla^, and having with them some bul- 
locks, an^l a number of horses, apparently laden, no doubt a pre- 
sent from the authorities of the place, which they informed me 
they should send me. 

There is no doubt that our persons and our flag will be more res- 
pected hereafter, than it has been, by the authorities of Porlct Rico. 

FiVery officer and man, on this occasion, conducted themseive* 
in a manner to meet my entire approbation. 

I have the honor to be, very respectfully, your most obt.sevt. 

D. POitTEU. 
Hon. Samuel L. Southard, 

Secretary of the JVavij, Washington. 

[Note. — It was admitted, on the trial, that this letter was received at the 
Department, on the 4tli December, 1S24.J 



rs 

^No. 3.) 
I'l'he Secretary uf the JVar^'s letter of recal to Com. Porter.'j 
Navy Department, QTth December, 1825. 

Sir : Your letter of the 15th of November last, relating to the 
extraordinary transactions at Foxardo, in the island of Porto Ri- 
co, on the of that month, has been received and considered. 

It is not intended, at this time, to pronounce an opinion on the 
propriety of those transactions on your part, but their importance 
demands for them a full investigation, and you will proceed, with- 
out unnecessary delay, to this place, to furnish such explanations 
as may be required of every thing connected with their cause, 
origin, progress, and termination- For that purpose, you will 
bring with you those officers whose testimony is necessary, par- 
ticularly lieutenant Piatt, and such written evidence as you may 
suppose useful. 

You will return in such convenient vessel as may be best spared 
from the squadnm, and on your leaving the station, you will de- 
liver the command tn captain Warrington, with all such papers, 
instructions, and information, as may be useful to enable him in 
the mosteftectual manner, to accomplish all the objects for which 
the vessels now under your command weie placed there. 
I am, very respectfully, &c. 

SAMUEL L. SOU THARa 

eom. D.ivii) PoRTBii, commanding' l^ S. ^ 

Naval Forces, \V. ludici;, Gulf of Mexico, &c. S 



\_Documents referred to in the Defence, as connected 
withy or tending to, illustrate the aforegoing.'] 

(No. 4.) 

Hesolution of the House of Representatives, passed on the 2rth 
t)ccember, 1824, requesting the President "to coimnunicate to 
the House any information in his possession, not iui proper to be 
communicated, explaining (ho character and objects of the visit 
of the naval ofiiccr of the United States, comniamliiig in the West 
Indies, to the town of i^'oxanio, in the. Island of Porto liico, on 
the day of November liisi.''(aj 

fa) Note. Tiie attention of the coUrt was directed in tlic defence, for rea- 
sons there explained, lo the circumstance of the Secrelary's letter of rccal to 
commodore Torter havings been def>;rred to the ven day, on wliich this leso- 
iution pas.sed : thoug-h the only information, on v.'hich t.lmt rec.a! was founded,, 
'o wit: commodore Poi'ter's ofu''i?.l report (No. ?, as id.iove.) had been rccelv- 
■d H\ore tU»n tlv'» 'vfi'Vi. 



(No. 5.) 

The PresiJcnt^s Message, of the 28th December, 1824, in an- 
swer to tlic fore»()ing resolution ; whicli, after conmiunicatiug a 
report from the Secretary of the Navy, and a letter fruin commo- 
dore Porter, as all the information in pohsession of the Executive, 
on the suhject, concludes, as foll(»ws : " Deeming the transaction, 
adverted to, of high importance, an order has been sent (b) to 
commodore Porter to repair hither, witliout delay, that all circum- 
stances, connected therewith, may be fully investigated." 



[The Secretary of the. JVavy^s report, referred to in the foregoing 
messiige.'] 

Navy Departmknt, December 28, 1824. 

Siu : In answer to a resolution of the House of Representatives, 
of the 27th instant, that "the President of the United States be 
requesteil to communicate to the House any information in his 
possession, not improper to be communicated, explaining the char- 
acter and objects of the visit of the naval officer of tlie United 
States, cojnmanding in the West Indies, to the town of Foxardo, 

in the Island of Porto Rico, on the day of November last," 

I have the honour to enclose to you a copy of a letter from cap- 
tain David Porter to the department, dated 15th November, which 
is the only information on the subject, in possession of this de- 
partment. 

An order has been given that captain Porter should return to 
this place, without unnecessary delay, and an officer will sail 
from the United States to relieve him, and take command of the 
squadron, in a very few tlays, as soon as a vessel can be prepared 
fitr the purpose. 

I have the honor to be, very respectfully, 

Your most obedient servant, 

SAM. L. SOUTHARD. 
The President o/ifte United States. 

[^.N'ute. The letter from captain David Porter, enclosed in this 
report, is the same given above as No. 2.] 

fh) Note The order bears d;U(? tlip 27th, the day before the messag-e, 
Vidf No. 3, as above. 



60 

|[NoTE. The following documents, A'o. t), 7, and 8, ifnre intro' 
duced to show, (in addition to, and in corroboration of , the oral 
evidence already given on that point,) the notoriety, nature, and 
extent, of the piratical haunts and ri'ccptacles on the coasts, and 
in the interior of Cuba and Porto Rico, and of the connexion 
between the pirates and the inhabitants of certain parts of these 
Islands; especially of tJie latter.^ 

(No. 6.) 

[Extract from the PresidenVs Message to Congress, (ISth Cong, 
1 St Ses.) Dec. 2, 1 823. Vide printed Message, [ I ] /?. 9-10.] 

'• Although our expedition, co-operating with an invigorated ad- j 
ministration of the government of the Island of Cuba, and with 1 
the corresponding active exertions of a British naval force in the \ 
same seas, have almost entirely destroyed the unlicensed piracies 
from that island, the success of our exertions has not been equal- j 
ly effectual to suppress the same crime, under other pretences and 
colors, in the neighbouring island of Porto Rico. They have been 
committed there under the abusive issue of Spanish commissions. 
At an early period of the present year, remonstrances were made \ 
to the governor of that island, by an agent, who was sent for the i 
purpose, against those outrages on the peaceful commerce of the 
United States, of which many had occurred. That officer, profe?* 
sin"- his own want of authority to make satisfaction for our just 
complaints, answered only by a reference of them to the govern 
ment of Spain. The minister of the United States, to that court, 
was ppecially instructed to urge the necessity of the immediate 
and effectual interposition of that government, directing restitu* 
lion and indemnity for wrongs already committed, and interdict 
itjo- the repetition of them. The minister, as has been seen, was 
debarred access to the Spanish government, and, in the mean time, 
several new cases of flagrant outrage have occurred, and citizens 
of the United States in the island of Porto Rico have suffered, 
and others been threatened with assassination, for asserting their 
unquestionable rights, even before the lawful tribunals of thu 
country." 



(No. 7.) 

TE^vtract from the Presidents Message to Congress, (I8th Cong, 
2d Ses.) Dec. 7, 1824. Vide printed Message, [I] p. 12-13.] 

<' The force employed in the Gulph of Mexico, and in the neigh' 
bouring seas, for the siippre.svion of piracy, has likewise been pre- 
set ved essentinlly in the state in which it was during the lastyear. 
A persevering effort ha^ been mad*.' for the accomplishment of*^that 
obj.'ct, and much piotertion hus ;!iereby been afforde«l to our com- 
merce; but still the practice is tar from being suppressed* From 



81 

every view which has been taken of the subject, it is thought that 
it will be necessary rather to augment tlian to diminish our force 
in that quarter. There is reason to believe that the piracies now 
complained of, are committed by bands of robbers who inhabit the 
land, and who, by preserving good intelligence with the towns, 
and seizing favourable opportunities, rush forth and fall on un- 
protected merchant vessels, of which they make an easy prey. 
The pillage thus taken, they carry to their lurking places, and 
dispose of afterwards, at prices tending to seduce the neighbour- 
ing population. This combination is uncH?rstood to be of great ex- 
tent, and is the more to be deprecated, because the crime of pi- 
racy is often attended with the murder of the crews, these rob- 
bers knovving, if any survived, their lurking places would be ex- 
posed, and they be caught and punished. That this atrocious 
practice should be carried to such extent, is cause of equal sur- 
prize and regret. It is presumed that it must be attributed to 
the relaxed and feeble state of the local governments, since it is 
not doubted, from the high character of the governor of Cuba, who 
is well known and much respected here, that if he had the power, 
lie would promptly suppress it." 



(No. 8.) 

r 

'^Extract from the Secretary of the JVTfit'j/'s Eeport, December 1, 
1 824, accompanying the last Message, Vide printed Documents, 
page 111.3 

" There are few, if any, piratical vessels of a large size in the 
neighbourhood of Cuba, and none are now seen at a distance from 
the land ; but the pirates conceal themselves, with their boats, in 
small creeks, bays, and inlets, and finding vessels becalmed, or 
in a defenceless situation, assail and destroy them. When dis- 
covered, they readily and safely retreat into the country, where 
oar forces cannot follow, and, by the plunder which they have ob- 
tained, and which they sell at prices low and tempting to the. 
population, and by the apprehensions which they are able to cre- 
ate in those who would otherwise give information, they remain 
secure, and mingle, at pleasure, in the business of the towns, and 
transactions of society, and acquire all the information necessary 
to accomplish their purposes. Against such a system, no naval 
force, wiiiiin the control of this department, can afford complete 
security, unless aided by the cordial, unwavering, and energetic 
co-operation ofthe local governments; a co-operation which would 
render their lurking places on land unsafe, and make punishment 
the certain consequence of detection. Unless this co-operation 
be obtained, additional means ought to be er^trusted to the Kxe- 
cutive, to be used in such inanper as experience may dictate,'' 



11 



£NoTE. Th& following documents, JSfo. 9, 10, and ll, were intro-^ 
duced, as preceding instances of the sanction given by the go- 
vernment, under the same identical instructions now in question, 
to descents from our squadron upon Spanish territory : the at- 
tack upon persons there inhabiting, and apparently engaged in 
the ordinary pursuits of the country ; the destruction of their 
villages and other habitations, ^'c. upon credible information of 
their being piratical haunts or establishments. These document:^ 
accompanied the Pre^idenVs foregoing Message of the 9.d De- 
cember, 1823; and are supposed, from the manner of their 
transmission, by the President, to have received his implicit ap- 
probation and sanction. Vide printed Documents, p. 156— "", 
157—8, 173—7.] 

(No, 9.) 

[^Extract of a letter from Commodore David Porter to the Secre- 
tary of the JVavy, dated U. S. Galliot Sea Gull, Allenton, 
Thompson's Island, May 10, 1823.] 

"Since I last had the honour to address you, I have returned 
to this place, with the Sea Gull and barges, and tound here captain ' 
Cassin, with the schooners and burges that accompanied him. 

•' The report of his cruise is enclosed. Our last cruise has been 
altogether a most arduous and fatiguing one ; and, although we 
have not many trophies to show, it has not been without eiiect : 
the result has been, the capture of a piratical schooner, and a verv 
fine felucca ; the destiuction of one on shore, the burning of three 
schooners in the Rio Pahnas, and about a dozen of their houses in 
the different establishments to leeward of Bahia Honda, and in- 
side the ColeradosReef; the complete dispersion of all their gangs, '* 
from Rio Palmas to Cape Antonio; and, what will be of no little 
importance in all our future operations, a most thorough and inti- 
mate ac(juaintance with the whole line of coast, from Cayo Blanco 
to the east, down to Cape Antonio, in the west. We have taken 
only one prisoner, and I shall endeavour to use such informatiorr 
as I can squeeze out of him to advantage." 

•' When I left Matanzas, the country was alarmed by large 
■bands of robbers, well mounted and armed, who had plundered 
several estates, and committed some murders in the neighborhood 
of the city. Bodies of horse had been sent in pursuit of them, 
and the militia \\ ere all underarms; some prisoners had been 
taken, and it was said that those bands were com[)osed of the free- 
booters which lately infested the coast, and who, being compelled 
to abandon the ocean, had taken up this new Hue of business." 



83 

(No. 10.) 

Captain Cassin to Commodore Porter. 

U. S. Ship Peacock, 

Thompson's Island, April 28, 1'623. 

Sir : I had the pleasure to inform you, by a sloop from the Ha- 
vana, bound to this place, on the 10th instant, of the successful 
beginning of my cruise, by the capture of the piratical schooner 
Pilot. After having shewn the Pilot in Havana, ami obtained a 
small quantity of water, I proceeded with the division to Cayo 
Blanco. We entered within the reef, and proceeded westward, 
making an average of about twenty miles per day, leaving no bay, 
inlet, or suspicious place, unexplored. On the 16th, a sloop boat 
was observed standing to the eastward. The Musquito was or- 
dered in chase; the sloop directly altered her course for the land, 
was run on shore, and abandoned by her crew, who escaped into 
the bushes. She was found to have arms of different descriptions, 
shot, and other articles of a suspicious nature, which satisfied me 
of her piratical character; and I took possesion, with an inten- 
tion to destroy her, as she was rotten, and an encumbrance to us. 

At 10 A. M. on the same day, we anchored in a noted harboc 
for pirates, intending to examine it thoroughly. Our anchor was 
scarcely gone, before a felucca was discovered standing out for 
the Gallinipper, who was ahead, sounding. On opening our ves- 
sels, she immediately hauled down her sails, and pulled around 
the point of an island. The barges were ordered in chase, accom- 
panied by all the boats we could muster. On their getting to 
where the felucca had disappeared, several houses were discover- 
ed, and a number of men busily employed carrying things from 
them, and, at the moment, were supposed to be fishermen. It was 
some time before the felucca was discovered, and, when found, 
was dismantled and covered with bushes, hastily thrown over. 

When the pirates (which they proved to be) found she was dis- 
covered, they fired a volley of musketry at our boats, which for- 
tunately proved harmless. The officers and crews immediately 
landed, and pursued them through the bushes, when a running 
fight of more than half a mile took place, the pirates frequently 
turning, for a moment, and firing, which was returned occasion- 
ally, but without efiect, from the eagerne,ss with which they were 
pursued. So closely were they press.ed, that they threw off shoes, 
clothes, and other incumbrances; but, from the t,liickness of the 
bushes, and knowledge of their path, all made tjieir escape. Their 
establishment, which consisted of five houses, was set on fire, and 
the felucca brought off. She is^a fine boat, coppered, pulls six- 
teen sweeps, and is, in every respect, equal to any of our barges. 
She appears to have been recently fitted, and, I presume, was oa 
the eve of making her first cruise. The old boat, which was taken 
in the morning, I gave to a fisherman, who was serviceable to U8 
as a pilot, she being an incumbrance. 

On the I7th, we proceeded, examining all places very minute- 
ly ; and. from the intricacy of the navijjjatien, did not arrive at cape 



84 

'St. AnthCuy until tjie Slat. From the moment we passed withiu 
the reef, until getting to the cape, we were obliged to keep the 
barges ahead, sounding. The vessels were all trimmed by the 
head, and every precaution taken, yet we frequently grounded. 
Many places, for several miles, we found only seven feet water, 
■and frequently less than six, when we were obliged to run out an- 
chors, and heave through the mud. I learnt, on the passage, from 
the fishermen, that the English attempted the same, but succeed- 
cd only part of the way. I also found the British sloop Scout 
cruising off" the cape, from the commander of which we learnt they 
had numbers cruising in that quarter, and on the south side. 

The passage witliin the Colerados, from beginning to end, I 
found extremely intricate ; but I am much gratilied by knowing 
we are the first who accomplished it. We suffered much for wa- 
ter, and the small quantity we were enabled to obtain, was such 
as lapprehended would create disease amongst us. And, for the 
successful termination of the cruise, I tender to lieutenants-com- 
mandant Stephens and Valette, lieutenant Stribling, and their 
officers, my sincere thanks. 

I have the honor to be, 

Very respectfaily, &c. 

S. CASSIN, 
Commodore David PoRxEn, 

Commwidins U. S. Naval Forces in the West Indies. 



(No. 11.) 

f Lieutenant- Commandant Kearney to Commodore Porter.'} 

U. S. Schooner Greyhound, 

Tnompson''s Island, August lOth, 1823. 

Sir: I have the honor of transmitting, herewith, for your in- 
formation, the enclosed report of tire cruise of this vessel, c(»m- 
menced under circumstances of a vexatious nature, as the report 
will shew ; but, terminating in a manner, I trust, somewhat satis- 
factory to you, although the principal object pointed out in you* 
letter (respecting the pirates at the Isle of Pines) has not met 
that success you may have anticipated ; but I have tlie satisfac- 
tion to inform you, that, although I have not been so fortunate 
myself, it has been the fortune of others to apprehend those very 
villains who committed the outrage upon the American vessels 
JReuben and Eliza and Mechanic, as mentioned in your orders. 

They are now in prison, at Trinidad de Cuba. Having had a 

/Communication with the governor of that place on the subject, I 
submit herewith my letter, with his answer, (together with some 
publications to be seen in Spanish newspapers,) for your informa- 
tion. Although I was not successful in getting the pirates into 
my possessifm, by the application made through the enclosed let- 
ter, and which, indeed, I did not expect; yet you will perceive, 



S5 

It has drawn an official acknowlet]2;mcnt of these pirates being in 
possession ot" the authorities ; making it a matter of public nor 
toriety, it becomes more obligatory to pursue their prosecution to 
"a just and proper issue. 

I take this occasion to express to you the hi^h sense I entertain 
©f the governor of Trinidad, which his attentions denuind. He 
tendered us every civility and aid in his power in the prosecution 
of our duties ; otFerin^ to procure us a pilot, and, altogether, evinc- 
ing a disposition of friendly co-operation, seldom met wiih on the 
island of Cuba. 

For your better information on tiie subject of our visit to Cape 
Cruz, I beg leave to subjoin the detail of events, in a more cir- 
cumstantial and particular manner than given in the enclosed re- 
p(n-t, viz. 

On the 20th ult. cruizing in company with the Beagle, lieut. 
commandant Newton, Cape Cruz bearing S. E. about four leases, 
brought too and examined a small armed schooner, of about 35 
tons, havins three prizes in company. She proved to be a Co- 
lombian, duly commissioned, commanded by a Frenchman, and 
manned by Frenchmen and some otliers, apparently natives of 
the country where she belonged. Her commission was dated at 
Cartliagena, last December. Her prizes were examined by capt. 
Newton, and found to be Spanish drogers, except one, a large 
canoe, calculated to carry about twenty men, which boat had beeii 
taken on shore, near the cape, where she had been abandoned by a 
party they supposed to be pirates, on bein"; chased by said schooner. 

On the following day, we stood in, with the Beagle in compa- 
uy, and anchored under the cape. Captain Newton and myself, 
as well for recreation as to examine the cape, landed with a small 
boat; but, finding the walking bad, we <igain embarked, and pro- 
ceeded alons: shore in search of some settlenient. Soon after 
getting out of sight of our schooners, (by doubling arouml the 
cape) a sudden and quick lire was opened upon usj from among 
a thicket of mangrove bushes and rocks, vvidi which the cape is 
bordered. 

The party was armed with muskets and blunderbusses, which 
were fired around us, alternately, withont effect; at the same 
time, a iirins; upon us was opened from another quarter, fromguns 
mounted on a high point of rocks a short distance ahead. Thus 
situated, with a cross fire upon us, enabled only occasionally to re- 
turn the lire of the parly jn ambush, as some of them would dodge 
from bush to bush, or rock to rock; having for our arms but a 
fowling-piece and one or two nuiskets, we were inducoil to return 
to our vessels, u hich we did. It being late, wo wailed till next 
day. 

On the morning (d' tlie 2x2(1, seiptain Newton and myself again 
set otF, hoisting our colors upon the boat : as it was a fair pre- 
sumption, that, in consequence of a Colombian vessel being on 
the coast, some mistake on the part of the people on shore, might 
have been made in regard to our cliaracler. But that proved to 
be groundless: for, having reached within the dist,ance of their 
§;-ui«, they opened upon us with more apparent spirit and deter 



86 

minatiou tliati btfore, from a position inaccessible, apparently, 
in the reur, from the thickets of bushes and briars ; and the same 
in front, from a precipice of rugged rocks ; and so commanding 
altojjelher, that, to prevent the loss of lives, I directed both ves- 
sels W> be warped round the cape, along an extensive reef, which 
almost encircles it, afturding a smooth and shallow harbor. We 
did not succeed in getting within gun-shot of the establishment, 
until we h;uJ reached five and six feet water, when we anchored. 

Lieutenant Farragut, with the marines and some seamen, was 
Qrdered on shore, to endi*avor to gain a position in their rear, to 
attack them, or cut oft' their retreat before the schooner moored, 
or their landing could be discovered by the pirates — as we had 
deemed the party we were about to attack. The oHicers of both 
schonners volunteered, and accompanied the party on shore, one 
being only reserved in each schooner, and a sufhciency of men 
for the guns, hoping to attract the attention of the pirates from 
Mr. B'arragut's party. Several shot were fired from the schooners, 
which drove the pirates into places of security behind ibe jutting 
rocks, where they seemed to be in considerable lorce ; tlie shot 
being seen to strike among the rocks behind which they sat; and 
not until the boats were despatched to land in front, and lieut. F's 
party was close upon them, did they abandon the advantageous 
position they occupied. They were pursued, but with so decided 
a disadvantage to the pursuers, from their want of knowledge of 
the passes, that none, unfortunately, were taken, except two old 
anti decrepid beings, whose age and infirmities placed them be- 
yond the merited chastisement their more active comradeg, had 
they fallen into our power, would have received. 

A four pounder, two swivels mounted on the heights, and some 
Inditterent articles of small arms, were found; they, however, 
escaped with their muskets and blunderbusses, or else hid them 
in some ol the numerous deep and intricate caverns to be found 
on the cape ? in one of which, various articles of plunder were 
stowed, but of no value ; however, enough to show the character 
of the wretches who infest that place, human bones were found 
in the cave. We found eight boats, but not of a large size ; their 
principal one was, no doubt, the one taken by the Colombian 
cruizer, as before stated ; and those men armed with muskets 
and blunderbusses were, no doubt, of her crew. 

From information derived from the prisoners, we learn that the 
captain of the gang was in prison in the interior of the island^ 
for having burnt an F^nglish vessel off that cape. As a singular 
instance of the growing propen>ilv of the present age for piracy, 
have to inform you, that ev(,4i a womanixnd children were of this 
gang, belonging to the captain of them — a second "Helen M'Gre- 
gor ;" and the old men, too, who can do nothing else, light up the 
signal fire, which was done in the present instance, on our ap- 
pearing on tlie coast. 

In another case, a captain of a vessel informed me that he 
had been plundered by a gang of pirates, who took him by sujf- 
prise, under the followit.g stratagem, viz, 

"An old man, (his bald head and hoary locks exposed to view) 



87 

and a little boy to steer the boat, pulled, or sailed along side of 
his vessel ; when it was too late, discovered that a strong party 
lay concealed in the bottom of the boat, to whom he ha<l to sur- 
render." 

The female just mentioned was removed to some place of safe- 
ty before the attack was made, (said to be tli-e wife of tlie cap- 
tain.) 

Finding our pursuit of the pirates promised no success, I con- 
sidered it unimportant to remain longer at the cape, having de- 
stroyed their means of doing further mischief for a time; and, 
taking into consideration the state of our officers and men. worn 
"down by fatigue from a long pursuit over one of the roughest 
countries I have ever seen, their clothes nearly torn oft" from bush- 
es of impenetrable thickness, and their shoes cut ott' their lect 
by shap pointed rocks, over which they passed, I abandoned the 
nlace, bringing off" the arms, &;c. of any consequence, and setting 
ure to every thing else that would burn. 

One large and well thatched house, and three smaller ones, 
were consumed, and a quantity of tishing nets; and their furni- 
ture, which I have always observed to be a part of the outfits of 
a piratical establishment; they are merely used for their imme- 
diate wants, in procuring sustenance, when their real profession 
proves unfruitful, and obliges them to it. 

1 have written you a very long and full account of this affair, 
in order that you may be possessed of every information in my 
power to give, in the event of a question arising as to the pro- 
priety of landing and burning property on a foreign shore; and 
should this case be noticed by the supporters of "territorial ju- 
risdiction," (over uninhabited parts of Cuba, notorious only for 
murder and piracy,) it will be seen that your officers and men's 
lives liave been jeopardized, and the flag of their country made 
a target for the lawless villains to fire at, at their pleasure, and 
which will continue so to be, if any restrictions sliouUl be put 
upon our landing in similar places, where no authority exists than 
the wilTof the marauders themselves who inhabit those places. 

I took the liberty of releasing the two prisoners, as there was 
no proof to establish them pirates; and I furnished them a boat, 
with an express condition, ti)at they should never appear again 
at the cape, and that I should take and treat as pirates, any per- 
sons found there hereafter, not furnished with a special licence 
from the present captain-general of Cuba, setting forth their 
character and occupation. 

This was taking upon myself, perhaps, too much ; but it is now 
submitted to you, whether such a measure W(!uld not be prosier, 
not only in regard to that place, but all others of alike positioti. 

That there is a chain of intercourse with fishermen who live in 
such places, and pirates, I have no doubt; and it must be obvious 
from several cases of late. 

As regards those at the Isle of Pines, they affect to know nCK- 
thing of the robbery of the vessels your order mentions tt» nie 
having taken place there; although the very articles of the car- 
goes of those vessels, 1 saw in their house. 



88 

At Cape Antonio, tvo years since, I found fishermen's hul 
filled with piratical goods, papers, and letters, robbed from d\(^ 
fcient vessels, strewed about their floors. 

That Hs!iermen,as well as pirates, should be moved from all the 
capes, or rather uninhabited parts of Cuba, where the proper au- 
thorities can have no control, I think necessary, and will I hope be 
the case. 

Tery respectfully, I have the honor to be 
Your obedient servant, 

LA WREN CK KEAJINEY, 

Lt. Co-nvdt U. S. A^tivy. 
Com. David Torteh, Commanding U.S. ') 

Naval Forces in the W. Indies and Gulf of Mexico. 3 

P. S. In my report of the affair at Cape Cruz, Ifirgof to men- 
tion, tliat we were not either hailed, oi v.as there any colors disi' 
played by the party that attacked us, by wliich we could ascer- 
tain tbeir character. 

As regards our character, they could have no great doubt: for 
liiey liad seen us communicating with an English ship of war, 
close oft" the cape, on the same day of our arrival. 

I was infurnied by the governor of Trinidad, of pirates infest- 
ing the coast to tlie eastvvard of that place, and was induced to 
proceed within the keys in pursuit. 

On my way, boaitled a small schooner, belonging to the G'and 
Cflyman island, and the information before received was corro 
borated by her master. 

Under these impressions, I reached Cape Cruz, and our recep- 
tion there induced a belief that we had met the party complained ut 
1 am, very respectfully, 

Your obedient servant, 

L. KEARNEy. 
Com. Uavik PoiiTKii, t'ooinianding U. S. '} 

.Naval Forces in tkt TV. Indies aim Gulf of 3Iexico. > 



Commodore Pokteu's correspondence with the goveniors oi' 
Cuba and Porto Rico, are also referred to. l»y these it appears, 
that U[)on his arrival, in the West-lndtes, with his squadron, he 
oHicially and fully disclosed to these governors, the objects of his 
command; and invoked their aid and co-operation in the accom- 
plishment of oi)ioi:ts, in vyliith the whole civilized world, and the 
governments ot these islands in particular, had a common inter- 
est : and that the respective governors gave the most favorable 
answers, highly approving ar»d. conunending t!ie expedition ; and 
promisin2; every tliitig on their parts, to advance the object ot 
exterminating pirmv \\\ those seas. 

[V^ide printed documents accompanying (he President's message, 
Dt^cemher 2, 1823, before cited; p. ISG, letter to governor of 
Porto Rico, March 4. 18^23; p. I:j8, governor Torre's answer; 
p. 148, letter to governor of Cubn, March 2G, 1823; p. 149, go- 
vernor Kinderlaii's answer, March 29th; {*. l6l, governor Vives' 



89 

(successor to the last named governor,) recognition of the same 

answer; May 10.1 . • u j- 

When commodore Porter left the West India station, in obedi- 
ence to his letter of recal, he commissioned lieutenant Sloat, 
commanding the U. S. schooner Grampus, to collect documents 
of the piratical and infamous character of Foxardo, and the ad- 
jacent district ; and of the circumstantial and presumptive 
evidence which led commodore Porter to the conclusion, up- 
on which he had proceeded against that pjace, as a jaratical haunt, 
and the probable receptacle of the plunder, from the store of Ca- 
bot, Bailey, & Co. of St. Thomas. The result of these inquiries 
was communicated by commodore Porter, on the 6th May, 1825, 
to the Secretary of tlie Navy, accompanied by the following letter: 

(No. 12.) 

Washington, May 6th, 1825. 

SrR : I have the honour to transmit to you a number of original 
letters, and depositions, respecting transactions at Foxardo, and 
the piratical character of the place. 

I have the honor to be. 

Your obedient servant, 
, D.PORTER. 

Hon. Sam'l. L. Southaud, 

Secretary of the J\ravy. 

The documents referred to, in this letter, consisted of nume- 
rous letters, affidavits, and written statements, in various forms ; 
some purporting to have been sworn to, before lieutenant Sloat ; 
others to have been acknowledged before, and certified by Ste- 
phen Cabot, under his official signature and seal, [";jer his attor- 
nev. John G. Bailey,"] as acting for Nathan Levy, vice consul ot 
the United State^, for the island of St. Thomas : these persons, 
[xVlessrs. C. and B.] being of the same house as Cabot, Bailey & 
Co. at St. Thomas, the robbery of whose store had been the im- 
mediate cause of lieutenant Piatt's and commodore Porter^s visits 
to Foxardo. These papers were from persons in St. Ihomas, 
Ca<^uar or Caguas, Foxardo, &c. and gave detailed accounts of 
numerous robberies committed at St. Thomas, by pirates landing 
at the town, or on the neighboring coast ; of minute investiga- 
tions into the circumstances and the persons of the pirates, and 
the disposal of the plunder: all of whom are stated to have been 
desperadoes, inhabiting in and about Foxardo and Naguaba, [about 
20 miles apart,] between which places the plunder was distri- 
buted and disposed of, as suited the interest or convenience ot 
the pirates. Various more recent piracies, at sea, by small boats, 
on the coast of Porto Rico, near Foxardo, are also stated, liie 
following is a list of the robberies, at St. Thomas, detaded in 
those documents, and traced to Foxardo and Naguaba. 

The store of Burgeest and Uhlhorn, to the amount ot about 
100,t)00 dollars; of which, Mr. Bergeest, [in a statement cerU- 
fied by S. Cabot, in the form above mentioned,] says, the per- 
12 



90 

petrators were, a month afterwards, discovered in the neighbor-' 
hood of Foxardo, where the goods were sold, but no part ever re- 
covered. He also gave it as his opinion, that Naguaba. near Fox- 
ardo, has been, for a length of time, the receptacle of stolen goods; 
" and it is beyond a doubt, [he continues,] that all the robberies, 
which, for some years, have been committed in this island, [St. 
Thomas,] particularly that upon the store of Cabot, Bailey & Co. 
Was, by the inhabitants of Foxardo, or its neighborhood; and to 
which place the goods were carried." 

The store of Ellis, Gibson and Co. of the same place, to the 
amonut of S 3,500: related by Mr. Browne, one of the firm, in 
an affidavit, before lieutenant Stoat; the goods were traced to 
Foxardo, Naguaba and Caguas, on the eastern coast of Porto Ri- 
co; for which suits were going on, at great cost, against the pur- 
chasers and receivers, who are stated to be responsible persons at 
these several places : the witness " further solemnly deposes, that 
he is convinced, from information received by his house, that the 
late robberies in this place, (St. Thomas,) have been committed 
by some of the same gang ; and the goods secreted along the coast 
about Foxardo, Naguaba, Caguas, ScC. &c." 

The store of Saubot, Joubert and Co. of the same place; the 
robbery of which is stated, (in an affidavit authenticated as the 
last,) by Mr. Saubot, one of the firm : who states that the rob- 
bery was committed in March, 1824 ; among other things, an iron 
chest, containing money and papers, was taken : of which, some 
bills of exchange and other papers were afterwards received from 
Foxardo; where the papers were said to have been thrown into 
the house of lieutenant-colonel Villodas, who had been sent there 
by the government of Porto Rico, commissioned to make inves- 
tigation of the robberies committed at St. Thomas ; and several 
Louis d'ors, also taken in the iron chest, were afterwards receiv- 
ed at St. Thomas; and, to their certain knowledge, from the coast 
and neighbourhood of Foxardo. 

The store of Robert Alexander, of the same place, 5th May, 
1824, of goods, to the amount S 1,200; and an iron chest with 
S 300 in gold, and valuable papers. A Spaniard of the name of 
Cabrero, undertook to secure the robbers and recover the pro- 
perty : who was only able to recover the papers; which were found, 
with the chest broken open, «' in Foxardo, or close to it :" and 
some trifling articles of the merchandize were also found. Some 
people, supposed to have been accessory, were taken up and lodg- 
ed in jiiil in the city of Porto Rico : but what became of them, 
was unknown. 

A letter (15th February, 1825,) from Ellis, Gibson and Co. to 
Cabot, Bailey and Co. fsworn to in the form above mentioned,J 
states that, in consequence of an application from Mr. Bailey for 
the particulars, collected, to elucidate the robbery committed on 
the store of Elli--, Gib'son and Co. in January, 1824, they had 
therein enclosed suadi)' letters, designated as No. 1,2, 3,4, se- 
verally dated at Cagu.is and Foxardo, in January and March, 
1824, from a pers .n wl) i^e name '\s suppressed ; and who had been 
applied to, both by Ellis, Gibson and Co. and by their friend, a 



91 

Mr. O'Kelly, to endeavor to discover the robbers and the plun- 
der. No. 1, addressed to Mr. O'Kelly, dated, Caguas, 23d Jan- 
uary, 1824, states that the writer had " obtained from credible 
persons, positive information where there is a considerable of 
the eifects ; and indications of the direction that has been given 
to the rest:" he then recommends a memorial to the captain-ge- 
neral of Porto Rico, for a commission, directed to, or includ- 
ing lieutenant-colonel Villodas, [the same person mentioned 
in Mr. Saubot's affidavit,] who slK)uld join the writer at Caguas, 
and go with him to Foxardo. The letter concludes with a par- 
ticular charge to conceal the name of the writer, " for his inte- 
rests and the preservation of his relations." No. 2, addressed 
to Mr. Gibson, and of the same date as the last, gives some fur- 
ther details of the persons of the robbers; mentio*is the commis- 
sion from the governor, as to a friend and a person of confidence > 
"considering this the only step that may prudently be adopted, 
to make the recovery." The writer says, *' I mig;ht have saved 
you the expense of a commission, by acting myself; but 1 assure 
you this is very disagreeable and transcendental business in this 
island. The commissioner is a colonel of the expeditionary array 
of Spanish main, to whom I shall have to pay } and will therefore, 
draw on you accordingly, as it may be necessary." No. 3, dated, 
Foxardo, 27th March, professes to give a circumstantial account of 
the researches, under the commission, concerning the robbery of 
Ellis, Gibson and Go's, store. 'Tis stated that, *• from the judi- 
cial proceedings, had for the purpose, it appears clearly, legally 
and justly proved, who were the robbers; to what point they con- 
ducted the whole of the plunder, and its distribution among them; 
what portions were introduced, by the coasts, within the jurisdic- 
tion of this town, [Foxardo,] and what by those of Naguaba; 
who were the assistants in the carrying, landing and co-ncealing, 
and who the purchasers. ALmong the last, the very persons have 
been denounced." The names of the pirates; the places, to 
which they took the plunder ; — and the names of the purchasers, 
o,f the plundered effects, at Naguaba and Foxardo, respectively, 
are specified; including, in the latter, "all those who had 
open shops of merchandize and chandlery." 

A great number of details, respecting the robbers, the pieces of 
merchandize recovered, and the minute process of the investiga- 
tion, &.C. &c. are set forth : The writer concludes with great prais- 
es of his friend, the commissioner; and, in the postcript, advises 
of a draught for two hundred and fifty dollars, to be paid to the 
commissioner, on account of his trouble. No. 4, to Mr. O'Kelly, 
dated Foxardo, February 9, 1824, expatiates on the rapid progress 
and activity of the investigation, under the commissioner ; whose 
energy and perseverance are commended : the great expenses at- 
tending the investigation are adverted to, and a promise made by 
the writer to the commissioner, to pay him the reward, that had 
been offered, in the papers, for the discovery of the robbery : "for 
[says the writer,] though it ought not to be offered us a stimulus, it 
ought justly to be given him as an indemnification for his extraor- 
dinary efforts ; — efforts, wliich alone could have brought the busi* 
ness to the state in which it is." 



92 

Ellis, Gibson, and Co. in their letter, enclosing the aforesaid 
letters, No. 1, 2, 3, and 4, to Cabot, Bailey, and Co. say, "you 
can make what use, you please, of the above letters, only the 
writer's name must be kept a profound secret." 

A letter from W. Furniss, of St. Thomas, (I7th February, 1825,) 
who had been requested to furnish information, alludes to some re- 
cent discoveries of piratical transactions ; in which it appears, from 
other of the documents, that many pirates had been arrested, and 
were then confined in the fort of St. Thomas : he speaks of having 
waited on the governor and judge, in company with lieutenant 
Sloat, to obtain extracts from the records in the governor's office, 
and the court-proceedings in the trial of the pirates, '♦ which might 
fix the thing in Foxardo, but were informed there were none.'' 
But he has no doubt that strong proof does exist, and may be ob- 
tained from the proceedings, in the trial, as to the character ot 
the inhabitants of Foxardo ; and intimates that the documents 
may be obtained from the official depositories, provided a demand 
is made to the government of St. Thomas, through the Danish min- 
ister residing in the United States. " In the piratical business 
discovered here, (he says,) a Foxardo boat made the principal fi- 
gure; which boat and her crew are now here under arrest. Pira- 
cies continue frequent on the East and South coast ot Porto Rico, 
conimitted by open boats and a small schooner." He then gives 
several instances of recent piracies on that coast, not material to the 
matter now in hand. He also mentions a fire which, within a few days, 
had burnt to the ground half the town of St. Thomas ; and which 
lieutenant Sloat, and the crew of the Grampus, were instrumen- 
tal in extinguishing; and to whom the preservation of the balance 
of the town is due; though not mucli is said about it in the papers* " 

A letter to commodore Porter, from an Anierican citizen, at 
St. Thomas, whose name is suppressed, dated 6th March, 1825, 
refers to a former one giving an account of the fire which took 
place on the 12th March, 1824; then supposed to have been acci- 
dental, but since concluded, from many circumstances, to have 
been the work of aju incendiary. "The fact is, (says the writer.) 
that this place and the neighborhood has, for a length of time, 
been frequented by pirates, and there exists no doubt, but the fre- 
quent attempts, seven in number, since the 12th, [meaning, doubt- 
less, attempts to fire the town,] have originated with the gavg, 
part of which are lodged in the fort of this place, £as prisoners.^ 
On the 12th, during the tire, and when it was supposed to be gain- 
ing on the upper town, the pirates in the fort cheered and appear- 
ed to be pleased," &c. " Business is completely at a stand, &c. 
The government of this island is without force. The prisoners, 
now in the fort, are nearly equal to the garrison; and, although 
the governor is using every exertion to preserve the remains of 
the town, and is inclined to execute the pirates, now in confine- 
ment, still the laws are not sufficiently strong to warrant him in 
so doing. The gang on the coast of Porto Rico must now exceed 
eighty ; and they have several small vessels in which they cruize. 
The commander of the Gramptis does all in his power, bu^ hi^ 



93 

force is not sufficient; and if our government does not send out a 
larger force on this station, I fear that the flourishing trade from 
our country to this will be done up. The inhabitants of this island 
are in a state of continued alarm; we are not only on the alert 
against fire, but fear that these desperadoes will attempt, during 
the flames, to assassinate the inhabitants. If you can influence the 
Secretary of the Navy to send us a greater force on this station, 
you will confer a great favor on all the re^sident Americans." — 
The writer requests his name to be kept secret, " as the govern- 
ment use every means in their power to keep the true state of 
things from coming to the ears of the public, supposing it will be 
detrimental to the trade of the place." 

Among these documents, is the following letter from C. B. and 
Co. [sworn to as before mentioned,] recapitulating tlie circum- 
stances of the robbery on their store. 

St. Thomas, I6//1 February, 1825. 

Captain David Porter, U. S. J\*avy. 

Sir : Agreeable to your request, we have collected and put in- 
to the hands of lieutenant-commandant Piatt, all the testimony 
regarding the various depredations which have been committed 
upon this place by the inhabitants of Foxardo and its vicinity, 
which the present unsettled state of tills place will permit, front 
the unfortunate fire. We will now repeat what our Mr. Cabot 
had the honor of verbally acquainting you, that our store was 
broken open and robbetl of a considerable amount of valuable pro- 
perty, on the night of the 24th October last, ail of which belonged 
to citizens of the United States. Being fully convinced who the 
perpetrators of this act were, and the course our goods had tak- 
en, from the welf known character of the inhabitants of Foxar- 
do, and the facilities believed to be rendered by the government of 
that place, we requested lieutenant-commandant Piatt to aid us 
in the recovery, whicli he very generously consented to. The 
circumstances of his reception and treatment at that place, you. 
will receive from lieutenant Flatt. We would now add, that about 
ten days since, we received information, which may be relied 
upon, that J(»iin Campus, of that place, a man whose wealth gives 
him consequence, and even tiie then Alcalde of tlie place, from 
interested motives, or otherwise, forbore to put in force any claim 
against him, was the actual receiver of our goods, and that he, at 
the time lieutenant Piatt was there, had them in possession. It 
will be recollected that tiiis said Campus is the man to whom our 
clerk was introduced by Messrs. Burgeest and Uhlhorn, of this 
place, and who had been the agent of most, if not all the houses 
jn this place, who hav6 been robbed, to obtain justice fo,r them, 
and he has written us for a power of attorney to act in our place. 
Three or four days since we received a message from a man in 
power in that place, whose name is suppressed, but who, we be- 
lieve, is the present Alcalde of Foxardo, (the Alcalde in the office 
at the time of you.r visit is removed,) ottering to obtain the value 
of the goods stolen, if we would relinquish, t« him one halJt of the 



94 

amount recovered. This we have consentfed to, and have no doubt 
but it will be accoinplislicd. 

We request you not to s;ive any greater publicity to this letter, 
and the documents you will receive, than is actually necessary ; 
for the lives of the parties would be endangered. 

We have the honor to be, sir, with respect, 
Your most obedient servants, 
fSigned; CABOT, BAILEY, & CO. 

The following letters from lieutenant Sloat, were also among 
these documents : 

U. S. Schooner Grampus, 

St. Thomas, 4th Feb. 1825. 

Sir : 1 heard, with great regret, that you have been recalled 
from the command of the West-India Squadron, on account of 
the Foxardo affair ; since which, I have every day been more and 
more satisfied of the propriety and necessity of treating these 
people in that way. There is not the least doubt, but the au- 
thorities of that place were concerned with, or, at any rate under 
the complete influence of Campus, a rich and influential mer- 
thant, who, we have since ascertained to a certainty, had the 
goods of Cabot, Bailey & Co. at the time of captain Piatt's visit 
there, and that he was, no doubt, the cause of his and Mr. Rit- 
chie's being confined, to prevent their getting information, and to 
induce them, with the young man sent from St. Thomas, in the 
Beagle, to leave the place as soon as released. The new com- 
mandant of Foxardo has recently sent a person to St. Thomas, 
to negotiate with Cabot, Bailey &Co. for the recovery of the pro- 
perty, and has entered into a written agreement with them, to 
prosecute this man, and to be at all the trouble and expense, for 
one-half of what he gets. He says he can prove, beyond the pos- 
sibility of doubt, that this man had the goods ; this, of course, 
must be kept secret at present. Bailey has entered into this 
agreement, by the advice of the government of St. Thomas ; and, 
after he obtains as much of the property as he can, the governor 
is to demand of the government of Porto Rico the remainder of 
the property, and the punishment of Campus. These, and many 
other circumstances about these people, have come to my know- 
ledge, that may perhaps be serviceable to you in the investigation 
that is said to oe intended about the affair ; and I assure you, it 
will give me much pleasure to throw any light on the subject iu 
my power. 

Very respectfully, I am, sir. 

Your obedient humble servant, 
(Signed) JOHN D. SLOAT. 

To Com. David Porter, U. S. JNTivy, 



95 

(Extract.) 

U. S. Schooner Grampus, 

St. Thomas, I2tli March, 1825. 

Sir : 1 have the honor to enclose you the deposition of the mas- 
ter and owner of the sloop Neptune, of this place. I have taken 
and forwarded it, thinking it may be serviceable to you in the in- 
vestigation of the Foxardo affair, as it shews the character of the 
people of that vicinity. Since you were here, they have robbed 
and captured several small vessels belonging to this place, and 
fitted out one or two of them, as pirates. Having obtained this 
intelligence, I procured two small sloops, such as are used in this 
trade, manned them, with the intention to examine all the small 
harbours of Crabb Island, and the coast of Porto Rico, where the 
Grampus could not enter; and as a decoy, my plan succeeded, 
and in Boca del Ferno, lieutenant Pendergrast was so fortunate 
as to fall in with one of them, who gave him chase. On coming 
near, however, he became suspicious, and tacked. Mr. Pender- 
grast then fired on him, which he immediately returned, and kept 
up the action for forty-five minutes, when he ran on shore, and 
they all jumped overboard, and swam to shore. They were near- 
ly all killed or wounded ; ten of those which escaped were taken 
by the soldiers, five or six of which are wounded, amongst them 
the famous piratical chief Cofrecinas, who has long been the ter- 
ror of the coast. The sloop I have taken is the new sloop belong- 
ing to the man that pilotted us to Foxardo, and was on the stocks 
when we were there. He had just got her ready for sea, and had 
taken her a few miles from that place to take in a cargo, when 
she was taken from him. By the next opportunity I will send 
you his deposition. 

With respects to Mrs. Porter, I am sir. 
Your obedient servant, 
(Signed) JOHN D. SLOAT. 

To Com. David Porter, U. S. JVary, Washington. 

P. S. Since writing the above, I have met with captain Low, 
and have taken his declftfation, which is enclosed. 

The depositions referred to in the last letter, are, 1st, that of 
Salvador Pastorise, of St. Thomas, who states, that about the last 
of January, 18-25, he sailed in the sloop Neptune, wlieieof he was 
owner, from St. Thomas to Las Platillas, in Porto Rico, nhere he 
safely arrived, and obtained a permit to discharge at Unbns, about 
twenty-five or thirty miles from Foxardo: that, in gcwig into Ho- 
hos, he was attacked, inside tlie harbor, by a small piratical boat, 
which continued firing till the crew escaped in the boat to shore, 
the master receiving a woucd in the head : the pirates seized the 
vessel, and pursued the crew, with intent to murder them, as be- 
lieved : tlie persons uf four of the pirates were known, and recog- 
nizeil, three of them as Creoles of Porto Rico, and one Italian 
^ttled there, within ten miles ol Foxardo the witness \?- '• '" >rm- 



96 

ed, and believes that his sloop had been fitted out, and was cruis- 
ing, as a pirate, about the coasts of Porto Rico. 

Secondly. John Low, master and owner of the sloop Ann, off 
St. Thoirias, swears that, about the 18th February, 1825, he sail- 
Qn} from Foxardo, for cape Rapalina, a small port within an hour's: 
sail of Foxardo, where ho can)e to anchor; and, at midnight on i 
the 20th, was boarded and captured by a sn»dl! piratical row-boat, , 
and, after being; robbed, was compelled, with liis people,*to jump j 
overboard ; all fortunately reached the shore, where they waited J 
for an opportunity to go to St. Thomas. After his arrival at that ! 
place, and reporting the aiikir, he sailed with lieutenant Pender- 
grast, in pursuit of his sloo[t, which had also been fitted out, and 
was cruizing as a pirate: he was present when his sloop was le 
captured, identified her, and had her restored to him. 

There was also, among these documents, an afiidavit of lieuto 
ant T. B. Barton, sworn to befi>re a justice of the peace for Mon- 
roe county, in Florida; and giving an account of the landing at 
yoxardo, spiking the guns, &,c. &c. which, being all fully detailed ,: 
in his evidence, recorded in this trial, it is unnecessary here to re-': 
peat. j 

All these documents were, on the Tth May, transmitted by the 
Secretary of the Navy to the court of inquiry then sitting; ac- : 
companied by a letter, in which the Secretary stated the source' 
from which he come into possession of the documents, &:c. 

It appears, from the minutes of the court of inijuiry, that they ; 
were read, " the court reserving all questions, as to their compe- ; 
tency and credit, for future deliberation and decision." After due 
deliberation, the court received tlie affidavit of lieutenant Barton, 
as evidence : but, " in regard to the other documents, the court is 
of opinion that many of them are not sufficiently authenticated to - 
authorize their reception, without an express and sufficient waiver 
of all exceptions entered on the record. That some of them ap- 
pear to be of a confidential character, and their contents such, as 
without affecting this case, ought not to be exposed to the public 
eye without necessity ; and that, collectively, they present no facts 
or views calculated to elucidate the subject submitted to the court. ' 
The court, therefore, direct the judge advocate to icturn them to 
liic navy department as irrelevant." 

These doLuments were published in commodore P(»rter-s pam- 
phlet, under the title of "Rejected Documents;" and wer(? read 
by the judge advocate, in this trial, with the rest of the pamphlet. 

[As a further illu^.i^atiltn of the praitical cfiect and influence 
of commodore Porter's operation at Foxardo, upon the opinions 
and conduct of the persons likely to be affected by it, documents 
of the following effect were produced in evidence.] 

In a report ftum lieutenant Sloat to commodote Porter, dated 
J2th December, 1824, of a cruize upon which he had been sent by 
thy comuiodore, he says, •' i enclose you the official account from 
f orto Rico of our expedition to that island. Several gentlemen 
I have seen from there, informed me,' (hat it created agieat sen- 
sation, and that La Torres threatens to retaliate on the first 
American officer he can catch, by making him walk barefooted b: 



97 

Fajardo. The captain of the Port, anc' the military commandant, 
liave been broke and confined. The Alcalde made his escape, 
and is now in this place. As I have no inclination to march baref- 
f(»oted to Fajardo, I cannot go to Porto Rico for water. 1 shall, 
therefore be obliged to purchase it at this place, or go down to St. 
Domingo, which 1 think I shall do before long, as I intend to visit 
the Mona Passage in a few days. We have nothing new on the 
station worthy of communication." 

The account of the Foxardo affiiir, mentioned by lieutenant 
Sloat, is a publication in a Porto Rico Gazette, of the 23d No- 
vember, 1824, entitled, " Shameful aggression by captain Porter, 
of the United States' frigate John Adams, in violation of the rights 
of nations :•' in which the writer undertakes to give a detailed ac- 
count of the transactions at Foxardo, upon information princi- 
pally derived from the Alcalde and captain of the Port; and at- 
tempts, in a long and abusive article, to prove the conduct of com- 
modore Porter, an unlawful and atrocious violation of the law of 
nations. 

In the several reports of lieutenant Sloat to the Secretary of the 
Navy, dated U. S. schooner Grampus, St. Thomas, 12th and 19th 
March, 1825, and the several documents accompanying the same, 
a more full and detailed account is given of the captkire of the 
pirates, in the harbor oi Boca del Inferno, by a sloop under com- 
mand of lieutenant Pendergrast, mentioned by lieutenant Sloat 
in his foregoing letters to conmiodore Porter; and also of the con- 
duct of the government and people of Porto Rico, and St. Thomas, 
in relation to, and in consequence of, that affair. 

From these, it appears that lieutenant Sloat, having learned that 
several vessels had been robbed by pirates near Foxardo, and that 
two sloops, [those of Pastorise and Low before mentioned,] re- 
cently taken by them, had been fitted out, and were cruizing as 
pirates, obtained two small sloops at St. Thomas, free of expense, 
by the cordial co-operation of governor Von Scholten; who order- 
ed a temporary embargo, to prevent intelligence of the expedition 
reaching the pirates. These sloops were manned, and sent, under 
the command of lieutenants Pendergrast and Wilson, on a cruize 
after the pirates ; but anchored, on the 3d March, at Ponce, where 
t!ie officers and crewi> of the sloops were taken on board the 
Grampus ; having missed the object of the cruize. But a sloop, 
confidently supposed to be one of those fitted out by the pirates, 
being seen, the next day, off the liarbor of Ponce, one of the sloops, 
before in service, was again manned, and sent in pursuit, under 
command «f lieutenant Pendergrast; who overtook and engaged 
the pirates in the harbor of Boca del Inferno; which is de^cribevl 
as very large and full of hiding places. After an action of forty- 
five minutes, the pirates ran their sloop on shore, and jumped over- 
board ; leaving behind them four dead. The survivors, thirteen 
in number, with a noted and formidable piratical chief, called 
Cofrecinas, at their head, were met, near a place called Guayama, 
in Porto Rico, by a colonel Renovales, at the head of a party of 
soldiers ; and, after a d<;sperate resistance, were all taken, badly 
and most i)f them mortally wounded; and sent to S*. Johns, Porto 
13 



98 

Rico: to which place lieutenant Sloat proceeded, and addressed 
a note to the governor, [Torres,3 offering the testimony of him- 
self and crew, to convict the captive pirates. The governor's an- 
swer is profuse and warm in expressions of thanks and commen- 
dation of lieutenant Sloat, his officers and men ; and states, that 
the most energetic orders had been issued, for all the authorities 
of the coasts to co-operate with the American squadron, in the 
most efficacious manner. The evidence, offered by lieutenant 
Sloat, is stated to be unnecessary, as the pirates had confessed 
enough to convict them. The following is a copy of the orders, 
referred to by governor Torres. 

"The captain of the U. S.^American schooner Grampus, (lieut. 
John D. Sloat,) goes in pursuit of pirates; for which purpose he 
will visit all the ports, harbors, roads, and anchorages, which he 
may find convenient. In consequence, you will give him all the 
necessary aid and notice for discovering them ; and in case of 
meeting with tl>em, the authorities of the coast, both civil and 
military, will join themselves unanimously with the said command- 
ant, to pursue them by land, while he does the same by sea ; and 
in case any of those wicked wretclies should seek refuge in the 
territory of any part of the island, they will pursue them briskly, 
until they have possessed themselves of their persons. The go- 
vernment expects, from the known zeal of the authorities referred 
to, that they will display the greatest activity, efficacy, and ener- 

f;y, in this important service, assuring;; each, in particular, of the 
ively interest wiiich it feels for the total extermination of such 
vile rabble, Ihe disgrace of humanity. Those who shall distin- 
guish themselves in the opinion of thwgovernment, will be report- 
,«d to his Majesty, giving to each one justice, according to his 
merits. God guard you many years. 

" MIGUEL DE LA TORRES. 
Puerto Jiico, I6th March, 1825. 
<'To the Military Commandants, and of the Quarters,"^ 
Koyal Alcalde, and other Civil and Mil. Authorities C 
and Functionaries of the Coasts of this Island". j 

Many of Cofrecinds's confederates were arrested on shore, and 
sent to St. Johns : five of them are stated to have been seut from 
Ponce. The Alcalde and military commandant of Ponce com- 
municated, through a Mr. Atkinson there residing, their thanka 
for the important service rendered them by our officers and men,' 
in the capture and destruction of this noted pirate and his gang: 
and give the strongest assurances of co-operation and assistance 
in the cause. 

Lieutenant Sloat also communicated the result of the cruize to 
governor Von Scholten of St. Thomas; who expressed the obli- 
gations of himself and the community, to lieutenant Sloat, for the 
assistance so readily afforded, on every occasion, to the island. 

[The three following documents having been particularly de- 
signated among those, relied upon by the prosecution, in suppo t 
of the first charge :(a) and having no intimation of the particular 
use or application of the same, as evidence, for the prosecution, we 
h<ive thought it safest to give thena at large.} 
CaJ Ante p^e 36: 



(No. 13.) 

St. Thomas. I2th JSTovemher, 1824. 

Sir: I have the honor to inform you that the store of Cabot, 
Bailey & Co. was broken open on the night of the 24th ult. and 
property to a considerable amount stolen ; and having stror^ rea- 
sons to believe that the robbery was committed by a gang of thieves 
who harbor in the island of Porto Rico, I communicated the same 
to captain Piatt, of the U. S. schooner Beagle, who very prompt- 
ly offered to go there in pursuit of them, and started for Foxardo 
on the morning of the 25th, with a pilot which I furnished him, 
and a young man from the counting-house, with a description of 
the goods, and a letter of introduction to Mr. Juan Campus, from 
one of the most respectable houses in this place, and well known 
in that quarter. The manner in which captain Piatt was received 
and treated, has no doubt been communicated to you by him. 

I beg leave to enclose a letter from Messrs. Burgeest & Uhl- 
horn, confirming the facts of the late robberies in this island, 
having in most instances been traced to the quarter of Porto Ri- 
co, where captain Piatt went. 

1 have the honor to be, sir. 

Your most obedient servant, 
STEPHEN CABOT. 
U. 8, V. Consular dgent. 
To Com. David Porter. 



(No. 14.) 

Sir : At the r-equest of our friend Mr. Stephen Cabot, we beg 
leave to state to you some facts relative to the robberies lately 
committed in this island. 

Our own store, and amongst others, those of our neighbors, 
Messrs. Ellis, Gibson & Co. Jno. Kettell, esq. Robert Alexan: 
der. esq. Saubot, Joubert & Co. were forcibly broken open, pro- 
perty to a very large amount stolen, and a considerable part of 
the goods traced to Naguaba, nearFoxardo; in consequence of 
which, and the circumstances that about ten days previous to the 
robbery committed in the store of Messrs. Cabot, Bailey & Co. 
a nang of desperate thieves nude their escape from the prison 
at the city of Puertorico, as also that every search had been made 
here on shore, as well as in the harbour, and nothing discovered, 
except tliat the goods stolen had been carried off by the sea-side, 
induced us to recommend to those gentlemen sending down a per- 
son to Foxardo, as being probable the means of tracing the rob- 
bers. 

Desirous of assisting our friends, Messrs. Cabot, Bailey & Co. 
in this object, we gave one of their clerks, and who, we under- 
stood, was to go down to the U. S. schooner Beagle, a letter ot 
recommendation to our friend, Mr. Juan Campus, in Foxardo, 



100 

who had on turmer occasions of the same nature, been the means 
of discoverins; the property and perpretrators, namely, in the case 
of Messrs. Pillis, Gibson & Co. and our own. 
We have the honor to be, 

"With sentiments of the highest regard, sir, 
Your obedient humble servants, 
BKRGEEST & UHLHORN. 
St. Thomas, llth J\ovember, 1824. 
To Com. David Porter. 



(No. 15.) 

U. S. Schooner Beagle, 

St. Thomas's, l\th JYov. 1824. 

Sir: At 10 in the morning of the 26th of October last, I re* 
ceived intelligence that the American Consul's store had been 
forcibly entered on the preceding night, and robbed of goods to 
the amount, of S 5000. With this report, the American consul 
requested me, provided it would prove consistent with my duties, 
to sail in quest of those, whom it vas supposed had clandestinely 
left the harboftr the night preceding in a small boat, and generally- 
believed by those acquainted in St. Thomas, to have proceeded 
to the port of Foxardo, on the east end of Porto Rico. 

1 directly gave the necessary orders to prepare for sea. Hav- 
ing received a good pilot on board, I was enabled by noon to pro- 
c^eed in quest of the marauders. Standing along the south side 
of Cr.ibb Island, discovered a sloop in Settlement Bay, boarded 
her, and received information of a piratical sloop rigged boat to 
leeward, that had been for some time past infesting the coast. 
This information induced me to alter my course and steer for the 
west enti of Crabb Island. At 10 A. M. discovered a sloop beat- 
ing to wiiidvvaid, and the small sloop rigged boat standing from 
the land : at 10 50 fired a shot to bring the sloop to; at 10 55 
fired agciiu. she hove about and stood for the land ; spoke the sloop 
—from St. Croix, bound to St. Thomas— made all sail for the 
sloop boat, which run into Bay, and her crew abandoned her : 
at 11 15 came to, and took possession of the deserted boat; at 
11 45 made sail, and stood for the S. E. end of Porto Rico, and 
at sun-set came to in the harbour of the port of Foxardo. 

On the morning of the 27th, a Creole visited me from shore, 
who bore an invitation from the commandant tome to visit him! 
At 7 A. M. in company with lieutenant Ritchie, the pilot, and the 
consul's clerk, I landed. For our better success, we appeared in 
the character of citizens. On ^r-.y reaching the shore, the register 
of my vessel was demanded ; I explained the object of my visit 
a d the policy of appearing in disguise j this, however, proved of 
Jio avail ; I was not allowed to proceed to Foxardo. Supposing 
that the pers^m who made these demands had no authority to de- 
tain me, I, in company with lieutenant Ritchie, proceeded to the 
port of Foxardo, and explained, in the most satisfactory manner 



101 

to the captain of the port, the object of my visit, and produced a 
private letter from Mr. Cabot, American Consul, to a merchant 
in that place, in relation to the service in which we were engaged. 
Having observed the necessary forms and ceremonies with regard 
to the captain of the port, we then waited upon the Alcalde, and 
further acquainted him with our mission, &c., who proffered us 
every assistance. Having made a few inquiries in some of the 
retail stores which had an immediate tendency to bring to li»ht 
any who may have been engaged in this traffic, we received a posi- 
tive order to repair to the Alcalde's house, where we were also 
received by the captain of the port, who damn'd us as pirates, and 
requesting of me my register, papers, &c. I stated 1 possessed 
no register, I carried no papers, other than my commission, and 
that of my officers. We were seized as culprits and conveyed to 
prison. To satisfy them of my real character, of whicli they pre- 
tended they had no positive proof, I consented, though repugnant 
to my feelings, to have my commission sent me; after its produc- 
tion, they declared it a forgery, and again remaniled us to prison, 
declaring he would not release us until he had heard from St. 
John's. I then demanded to know what was further required? 
the reply was, '• Your appointment as lieutenant-commandant of 
that vessel is what you must produce." I, at first hesitated, and 
would not comply, but not wishing on my part to commit any ac- 
tion which might have a tendency to disturb the harmony existin"- 
between the respective governments, I produced my appointment 
aslieutenant-commandant. A council of officers vvas called with 
other citizens of the place, who, after having heaped upon us the 
most shameful outrages, permitted us to depart on board. 
I have the honor to be, respectfully, 
Your obedient servant, 
(Signed) CHARLES T. PLATT, 

Lieut. Coimnhlt U. S. Schooner Bea<^le. 
To Copi. David Porter, U. S. JS''avy, 



[As a part of the action, the letter addressed by commodort 
Porter to the Alcade of Foxardo, and sent with the flag by lieut, 
Stribling, should have been placed with the evidence of lieuten- 
ant Piatt and others : it is here given as read, on the trial, from 
the pamphlet.3 

(No. 16.) 

U. S. Ship John Adams, 

JYovember 12, 1824. 

Sir : It has been officially reported to me, that an officer under 
my command, who visited the town of Foxardo, of which you are 
the chief, in search of robbers and froe-booLers, who with a large 
amount of American property, were supposed to have taken shel- 
ter there, and bringing with him sufficient testiiuonials «s to his 



1053 

object ami character, was, after they were all made known to you, 
arrested by your order by armed men-, and slianiet'ully insulted 
and abused in your presence by the captain of the port, after 
which, he was sent by your orders, to prison, and when released 
therefrom, was further insulted and abused by the inhabitants of 
the town. His object in visiting Foxardo has, by these means, been 
defeated, and for these offences no atonement or explanation has 
yet been made. 

The object of my visit is to obtain both, and I leave it entirely 
to your choice, wliether to cojne with the captain of the port and 
the other offenders to me, for the purpose of satis^fying me, as to 
the part you have all had in this shameful transaction, or U) await 
my vinit at your town. SImuld you decline cominjLl' to me, I shall 
take with me an armed force, competent to punish the agjjressors, 
and if any resistance is made, the total destruction of Foxardo 
will be the certain and immediate consequence. 

If atonement for the injury is promptly made, the innocent of 
the offences will escape all punishment~but atonement must and 
will be had, and if it is withheld from me, they will be involved 
in the general chastisement. 

I shall hold the town and vessels in the harbour answerable for 
any detention or ill-treatment of the officer* who bear this letter. 

tallow you one hour to decide on the course you will pursue, at 
the expiration of wluch time, if you do not present yourself to 
me, I shall march to Foxardo. 

I have tlie honor to be, with great respect, 
Your very obedient servant, 
(Signed) D. PORTER. 

To the Alcalde of Foxaruo. 



[Note, as to the documents transmitted by commodore Porter 
to the Navy Department, on the Cth of May, and by the Secre- 
tary to the court of inquiry, on the Tth, and which were printed 
in the pamphlet, under the title of "rejected documents,'*'' (the his- 
tory and contents of which are above given from page 89 to page 
96,) no intimation was given, from the prosecution, that the use 
of them, as evidence on this trial, was objected to : nor is it con- 
ceived that any possible objection can lay against them. The 
court of inquiry appears to l\ave rejected them for several reasons, 
stated in the minutes of their proceedings : which reasons it may 
be proper, in order to give these documents their due weight in 
this case, to examine. 

Objection 1. Many of the papers are not sufficiently authenti- 
cated, to be received, "without an eA^presH and sufficient waiver 
of all e.vceptions entered on the record.''^ Answer, 1, as to the 
authentication: an officer, engaged in the active operations of 
war, must, in the nature of things, act upon probabilities and pre- 
sumptions; upon credible information ; of the credibility of 
which he is the sole judge ; upon what is called moral evidence, 
as distinguished from /eg'ft/y»v>fj/. }Ie would be lost, if he were 
oWiged, not only to collect inj'orniation and facts, upon which to 



103 

proceed, but to wait tifl such information and facts, werfe proved 

and established by le{!;al evidence; and that evidence authenti- 
cated in legal t'orin. His justification depends not on the ab- 
solute verity of the factt<; nor on the form or nature of the evi- 
dence which led him to confide irt their verity : the onlv question, 
in such case, is whether the facts, if true, jiistified the operation ; 
or, if not true, whether he had reasonable ground, in the honest 
exercise of his discretion as a military or naval commaniler, to 
believe them. It would be a poor business for him, if his country 
or the service suftVr from his neglect to meet and to repel an im- 
minently approaciiiog or tlireateued [leril.to cavil ibout the modes 
of legal proof, or the formal authentication of documents or other 
evidence. Information, conveyed in letters, certificates, or oral 
communications, or even by covert hints, or signs, are, according 
to circutnstances, just as operative in the field, as the examina- 
tions of witnesses on oath, or the most formal specialties, in court. 
The information, as to the actual condition ol Foxardo in relation 
to the public enemy, the pirates, collected by commod'ue Porter, 
at St. Thomas, or elsewhere, in the fortn of letters, conversation, 
&c. came precisely within the principle. The itiformal authen- 
tication of the Siunc, by an oath before lieutenant Sloat, who was 
not legally qualified to administer an oath; or by the certificate 
of a vice-c(»nsul, is utterly immaterial. If they had been sworn 
to before any justice or magistrate whatever, the authentication 
■would have been just as insutRcient, in a legal view: they would 
ha\e been nsere vuluntary affidavits; and, as such, could have 
carried with them none ot the sanctions of a judicial oath. In' 
that view, the afiidavit of lieutenant Barton, vvhi-ch Avas received 
by the court, as properly authenticated, was just as destitute of 
b'gal authentication, as the affidavits sworn before lieutenant 
Sloat, or certified by Mr. Cabf-t, the vice-consul's agent, /yer /lis 
attoriieif. They all stood upon precisely the same ground, of 
probable information; which a military commander was not only 
justijii'd in giving credit to, but which he would have been crimi'- 
nal, if he had disregarded. Of the anthenticity of the papers, no 
reasonable doubt could exist; whatever might be said of their 
authentication. They were oris;inal documents, procured from 
respectable houses at St. Thomas; — certiiied by the acting vice- 
consul of the United States, or his attorney; and b) liei:tenant 
Sloat : and they had passed through the hands of two othcers of 
the United States, (lieutenants Sloat and Piatt,) directly to those 
of commodore Porter; from him directly to the Navy Depart- 
ment, and from that, directly to the court. It deserves serious 
Cons^ideration, what a strange predicatnent, an officer, sent on fo- 
reign service, is placed in ; if informal evidences ol the facts and 
circumstances, upon which he acted, are not to be received to ex- 
plain and justify his coniluct. He is bound to act upon such, at 
the peril of life and honor, if he neglect to pursue the course, 
which such informaliims point out, as necessary: and yet, alter 
he has acted upon them, another and iuipracti cable mode of proof 
must be resorted to, fur his justification at home. Impracticable, 
it" it must be legal evidence, formally authenticated : because th'e 



104 

law has not piovideil for any mode, either for the caption or the 
authentication of evidence, in foreign parts. Voluntary affida- 
vits, no matter how solemnly svorn to, or how authenticated, are 
just as inadmissible, under the strict rules of legal -proof, as let- 
ters, certificates, &c. Even if the law had provided any mode 
of taking regular depositions in such cases, the inconvenience 
would be incalculable, of holding an officer under arrest, till com- 
missions could be sent out and executed, with the usual formali- 
ties in various and remote regions. The rational mode of get- 
ting over tlie difficulty is that which the government seemed (lis- • 
posed to have adopted. In this instance ; which was to permit the ' 
informations and intelligence which had formed the basis of com- 
modore Porter's conclusions, when called to action, to be laid be- 
fore the court, in extenso : and to pass at their intrinsic value, 
without regard to the formalities of authentication. Answer, 2, as 
to the express waiver y of exceptions, required by the court: here ' 
were two parties before the court, the government and commodorfe 
Porter. Now which of these could except; from which of them 
could any thing in the nature of an exception be apprehended ? 
com. Porter had obtained and transmitted the documents, as evi- 
dence in Iusown/fluor;as tending to justify his conduct in the Fox- 
ardo affair. To have apprehended exception from him, against his 
own evidence, would have been absurd: to have required an express 
waiver, from him. on record, of exceptions against his own evi- 
dence, would have been no less absurd, and more unjust. He had, ; 
some days before, withdrawn himself, as a party, from the court, , 
in consequence of some conditions having been imposed on his 
intercourse with the court, which he thought unjust and deroga- 
tory : he could, therefore, neither urge nor waive exceptions: and 
so, the condition of an express ivaiver, was equivalent to an abso- 
lute rejection of the evidence. Then the only party, from whom 
it can be presumed that the court apprehended exceptions, or re- 
quired an express waiver on record, was the government. And 
had not the government, as represented by the Secretary of the 
Navy, most distinctly waived such exceptions ; and even made the. 
waiver in a form to be entered on the record? Surely that question 
must receive an unanimous answer in the affirmative, after the, 
least reflection upon the circumstances. The documents are trans- 
mitted from the navy department to the court, as evidence; ac- 
companied by a letter, from the Secretary, either expressing, or 
as strongly implying the assent of the government, to have the do- 
cuments used in the investigation before the court. Then here 
was a concurrent act of the only two parties, in the case, making 
the documents evidence. The means by which the court came 
into possession of the papers, were, of course, officially known to 
the court: there was the official letter accompanying them : all 
these the court might have had entered on the record, as equiva- 
lent to the required waiver: Why then require an express waiver.'' 
This consent of parties, to the admission of the documents, both 
answered every possible objection to their form of authentication, 
and dispensed with all necessity for an " express iraiver^' on re- 
cord. 



105 

'Ohjedion 2. Some of the documents are of a confidential <f/f!?P" 
acter, and ought not to be exposed to the public eye, without ne- 
cessity. Answer. 'Tis not perceived what the court had to do 
with their confidential character. The documents had been com- 
municated and belonged to commodore Porter. Whatever con- 
fidence, was attached to the communication, was reposed in him 
alone ; and was to be dealt with, upon his sole responsibility : and, 
upon tiiat responsibility, he used the documents in his justifica- 
tion and defence. But it was expressly to answer the precise 
ends of that very justification and defence, (known to^ and avow- 
ed by all the parties, from whom the documents had been pro- 
cured,^ tliat they were originally communicated to comnuxiure 
Porter. All that he is required to do is to conceal the nares of 
certain persons, whose safety might be endangered by the disclo- 
sure: and he faithfully fulfils that injunction, by suppressing the 
name of every such person. Even Messrs. Kllis, Gibson, and Co. 
when they communicate the four letters from a secret agent, re,' 
sident at Caguas, and stationed at Foxardo ; in the centre and heart 
of piratical power; in the very den of the lion ; and consequently 
exposed to a degree of danger, from disclosure, infinitely exceed- 
ing that of any otiier person concerned ; even, in regard to him, 
the only precaution required, is the concealment of his Wfmic. For 
Messr*-. E. G. and Co. expressly permit commodore Porter to 
naxke ivhat use he pleases of the letters of that agent; "only the 
writer's navie must be kept a profound secret.^^ fVide ante page 
90—2.; 

Objection 3. " That, collectively, they present no facts or views, 
calculated to elucidate the subject submitted to the court. The 
court, therefore, direct tlie judge advocate to retmn them, to the 
navy department, as irrelevant.''^ Answer. Whatever idea may 
have been entertained of the nature of the subject, or the extent of 
the iiu|uiry subinitted to that court, there can be no doubt either of 
there/eraHC^ or uf the importance of the facts, disclosed by these do- 
cuments, to ihe questions now involved in the first charge. Is it not 
of the utmost importance to ascertain the force, the resources and 
the connexions of the pirates, in and aboui Foxardo, and the neigh- 
boring coasts and districts of Porto Rico? Their numerical 
strength and physical power; and the nature and extent of their 
moral influence in those quarters ? Is it not precisely to the point, 
to prove that an American house of trade had been piratically 
robbed, by a daring and atrocious band of marauders from Foxar- 
do; where they had retreated, with the plunder of American citi- 
zens and American commerce ? And do not these documents teem 
with such evidence? Do they not abound with the most damning 
'/acts, and the most pregnant circumstances, tni fix, at Foxardo, the 
focal points of piratical power and influence ? To demonstrate that 
any other power or influence, was but a name : that their influence 
and their concerns were ramified through the whole frame of the so- 
ciety: that whatever there was of wealth or prosperity, or of apparent, 
respectability, in that quarter, was in secret league with them ; and 
subsisted on the infamous profits of the connexioQ : tbat whatevpi^ 
14 



106 

there ^as, wearing the appearance of tmf^orify or office, was either 
intimidated or corrupted, into the active or passive instruments of 
the pirates and their connexions : that all the natural and arti- 
ficial advantages and facilities of the towns, coasts, and fastnesses 
of the district, were in the hands, or at the unlimited command 
of the pirates ; who had gained as complete a domicil there, &i 
actual pirates can have any where : that, upon those whose mo- 
rals had not been corrupted by the traffic of piracy, an awful dread 
of piratical power and vengeance, had imposed a mysterious si- 
lence; a silence which they dared not break either to justify 
themselves, or to accuse the pirates; that this dark and lower- 
ing cloud of fearful mystery was not confined to the seat of pirati- 
cal power, at Foxardo, but even overshadowed the independent 
island and city ot St. Thomas : where persons, of the highest stand- 
ing in society, and above all suspicion of connivance; indeed the 
complaining victims of atrocious piracy, find it necessary to adopt 
the precaution of concealing the names of their agents and in- 
formers ; whom they have no means of protecting against pirati- 
cal revenge: where even an American citizen, though resident 
at St. Thomas, finds it prudent to require the concealment of his 
name. Do not these facts, and the circumstances attending the 
recent conflagration of St. Thomas, speak volumes, in proof of the 
tremendous power wliich these wretches had established at Foxar- 
do ; and of the indispensable necessity and duty of pursuing them 
to their haunts and holds ? The stress laid by the court of inquiry 
upon the obligatory force of the confidence, in which these docu- 
ments were supposed to be communicated, corroborates every con- 
clusion: as it indicates the implicit credit, given by the court, to 
the sincerity of the apprehension;^, and the reality of the dangerj 
to which the disclosure might expuse the persons concerned. 

'Tis vain, indeed, to be recapitulating the circumstantial and 
direct evidence, to every important point of this charge, contain- 
ed in these documents: for no one can read them, in connexion 
with the charge itself, and the pvinciples assumed in the defence, 
without the pertinency and importance of the facts and circum- 
stances, disclosed by them, appearing manifest. 

The admissibility of them, as evidence of such /acfs and circum- 
stances, is clearly established by the manner of their transmission 
to the court of inquiry: and, if that were at all doubtful, the reading 
of them, without exception, by the judge advocate, in behalf of the 
prosecution, in this trial, clearly dispensf^s, according to the best es- 
tablished rules of practice, wi(h all forms of authentication. At 
least the prosecution is concluded from all objection on that head. 
But so much has been said, out of abundant, and, probably, unne- 
cessary caution: for, as before remarked, we have no reason to 
presume that any objection was ever intended on the part of the 
prosecution. 

In commenting, thus freely, upon the decision of the court of in- 
quiry, we have been actuated by no wish to cavil at, or to criticise 
unnecessarily, the proceedings of that ti ibunal : and we should, in- 
deed, have submitted our reasons, against its decision, with the 



107 

utmost confidence in the candor of its members, if their opinioo 
were to be reviewed bj themselveSo Our sole motive, for this dis- 
cussion, h.is been, to establish the weight of this important evi- 
dence, by its true standard : and to free it from the doubt, which 
the decision of the court of inquiry was calculated to raise, not 
merely of its authentication, but of its relevancy to the matter in is- 
sue. 'Tis hoped that the manner of the discussion is entirely 
consistent with the respect really entertained for the court J 






RELATIVE TO CHARGE SECOND, 



Specification 1. ''Various letters of an insubordinate and dis- 
respeciful character," beinj; five in number, to which the specifi- 
cation refers, by mention of their several dates. 

We have thought it conducive to a clearer understanding of the 
particular letters, charged as "insubordinate and disrespectful," 
in this specification, to introduce them in connexion with the en- 
tire series of correspondence, of which they formed part; and 
to place them, in that scries, according to the order of date and 
connexion. The whole series has been introduced, at different 
times, and authenticated in various modes during the proi>;ress of 
the trial J without any indication, from the prosecution, of the pur- 
pose for which they were to be used, or of the point to which they 
were to be applied : except in regard to the five letters, mention- 
ed in this specification ; which were lead from the originals, or 
from ofiice-copies, admitted, or proved, in the course of the pro- 
ceedings, on the 20th, 21st, and 22d days of July '.(a) some of them 
also appeared in the National Intelligencer, of the 30th March, 
1825, as admitted on the examination of Mr. Seaton \(h) some in 
the National Journal, of the T6th June, 1825, as proved by Peter 
Force '.(c) and others in commodore Porter's printed pamphlet, as 
admitted on rhe trial. fc?^ All the other numbers of the following 
series, appear in one or other of the three printed documents afore- 
said, viz. The National Intelligencer of March 30, 1825 ; the Na- 
tional Journal of June 16, 1825; and the pamphlet. 

The five letters designated, in this specification, as " insubordi- 
nate and disrespectful," are distinguished, in the following series, 
by this mark, t (vide No. 2, 5, 7, 8, 14.) 



(No. 1.) 

j^The series is thought properly to commence with the letter of 
recall, December 27, 1824, from tlie Secretary of the Navy to com- 
modore Porter, in consequence of the Koxardo aft'air; being part 
of the correspondence published in the Nationallntelligencer, and 
also in the pamphlet : for which letter see ante p. 78, No. 3.] 

CaJ Ante p. 44, 48, 49. f ij Ante p. 51. 

CcJ Ante p. 52. (dj Ante p. 49. 



. 109 

(No. 2.t) 

J. S. Ship John Adams, 

Thompson's Island, Jan. 30, 1B9:5'. 

Sir : I have the honor to acknowledge tlie receipt of jour or- 
ders of the 27th ult. informing me of your reception of mine of 
the 15th of November, relating to what you have been pleased to 
term «' the extraordinary transactions at Foxardo," and recalling 
me from my command for a full investigation of my conduct in 
that affair. 

Agreeably to your orders, I shall leave this place for Washing- 
ton " without unnecessary delay," and have taken measures to ob- 
tain all the testimony necessary, and such written evidence as I 
suppose useful, and, on my arrival in the United States, siiall hold 
myself ready to justify my conduct in every particular, not only 
by the laws of nations and of nature, and by highly approved pre- 
cedent, but, if necessary, by tlie orders of the Secretary of the 
5favy. 

To use the emphatic language of Mr. Adams, " By all the laws 
©f neutrality and war, as well as of prudence and liumanity," I 
was warranted in chastising and intimidating the authorities of a 
place who had not only become the allies aid protectors nf out- 
laws and pirates, but our active enemies, by the imprisonment and 
forcible detention of an American officer, while in the perform- 
ance of his duties. " There will need," ('continues Mr. Adams.J 
"no citation from printed treatises on international law, to prove 
the correctness of this principle. It is engraved in adamant on 
the common sense of mankind. No writer upon the laws of na- 
tions ever pretended to contradict it; none of any reputation or 
authority ever omitted to insert it." 

i am willing, sir, to submit my conduct in this affair to the 
stricte:>t investigation, and if I cannot fully justify it, I shall cheer- 
fully submit to the severest punishment that can be inflicted. But, 
if it shall appear that the motives which influenced me were found- 
ed in patriotism ; that the necessity for my conduct really exi^-ted, 
and that " my vindication is written in every page of the law of 
nations, as well as the first law of nature, self defence," I shall 
then hope that atonement will be made for this forcible withdraw- 
al, for an alleged oftence, from my command, by restoring me to 
my former station, and allowing me to retire from it in a (tanner 
more honorable to myself and my country, and less injurious to 
my feelings and character. 

This, sir, will be an act of justice that I hope will not be denied 
to me. 

I have the honor to be. 

With great respect, 

Your obeilient servant, 

D. PORTER. 
Hon. Samuel L. Southard, 

Secretary of the JS^vy. 



110 

(No. 3.) 

Washington, March Isf, 1825. 

Sir: I have tlie i»onor to inform you, that, in obedience to you - 
orders, 1 have come to this place, and 1 now await your furthe; 
directions. 

With the greatest respect, 

Your obedient servant, 
„ ^ ^ ^ ("Signed; D. POUTER 

tton. OAMUEL L. Southard. 



(No. 4.) 

Washington, MarcJi Sid, lS2c, 
Sir: Having this day seen, in a print, several letters from Mr, 
Ihomas Randal! and Mr. John xMountain, communicated throu-h 
the ^tate Department to Congress, and highly injurious to the 
character ot myself and other officers belonging to the West In- 
dia squadron, I h;i%e to request that an inquiry maybe instituted, 
to ascertain how f^i, facts will justify their 'statements and re- 
marks, and the injurious remarks they have elicited on the floor 
01 Longress. 

I have the honor to be. 

With great respect. 

Your obedient servant, 

Wn« « T o ("Signed; D. PORTER- 

ilon. fcAMUEL L. Southard. 



(No. 5.t) 

Washington, March i6th, 1825. 
Sia: It is now sixteen days since I had the honor to report to 
jou my arrival here, in obedience to your order of the 27th De- 
cember, and 1 have anxiously since awaited your further instruc- 
tions. 

I am aware, sir, of the interruptions the recent changes in go- 
vernment and otiier circumstances have occasioned to the trans- 
actions ot public business, and however irksome and uncertain 
may be my present situation, and whatever anxiety I may feel 
on the occasion, it is not my wish to press on the department my 
own affairs, in preference to those of greater importance. I can- 
rot, however, help requesting that there may be as little delay in 
the investigation of my conduct, both as regards the affair of Fox- 
ardo, and the statements of Mr. Randall and Mr. Mountain, as 
IS consistent with the public interests. 



Ill 

The state of ignorance and uncertainty in which I have beea 
kept, as to the intentions of the government, and the desire of vin- 
dicating myself to the government and the public, and relieving 
mvself from a species of suspension and supposed condemnation, 
must be my apology for now troubling you. 

Officers continue to make to me their reports, and to reouest of 
me orders. Not knowing whether the department still considers 
me in command of tlie West India squadron, I have been at a loss 
how to act. Will jou be pleased to instruct me on the subject. 
I have the honor to be. 

With great respect. 

Your obedient servant, 
(■Signed; D. POiiTKR. 

Hon, Samuel L. Southard. 



(No. .6.) 

Navy Department, IGth March, 1825. 

Sir: It has become my duty to apprise you of the determina- 
tion of the Executive, that a court of inquiry will be formed, as 
soon as circuiustances will permit, to examine into the occurrence 
at Foxardo, which was th.e occasiofi of your recal, and f^lso t > com- 
ply with the request contained iii your letter ot the 8th [2d] ijist. 

It was the intention of the department, in ordering capt. War- 
riniilon to t!ie West Indies, to relieve you from the command of 
the squadron there. 

I am, resppctfullv, &c, 
[Signed] SAML. L. bOUTHAHD. 

Cn.M. David Porter, U. S. JVavy, Present. 



(No. 7.t) 

Washington, ^pril 13, 1825. 

Sm: I hope it will not be considered obtrusive in me, to re- 
mind you of the extremely unpleasunt situation in which your or- 
ders of the 27th of December have placed me. You will recol- 
lect, no doubt, that they required me to repair to this place, with- 
out nnnecetisary dela>/, to explain iny conduct in relation to the 
Foxardo attair. Froi« tliis positivij iijunction, they deprived me 
of the (tppoitunity, without taking on myself great r.-sponsibility, 
of obtaining', by personal application, the written testunonv ne- 
cessary in the case ; not knowing the cause which i:»iiuenced you 
in urging my recal so speedily, and not wishing to have unneces- 
sary delay ascribed to any wisli on my part, the day of my ar- 
rival here, (the 1st of jJarclO I reported to you my attendance 
•>ri your further orders. No notice being paid to this report, after 



an interview hail with the President, T again addressed you at his 
sujigestion, on the l6th of the same mouth, and on the same day 
I received your letter, apprising me, that, by tlie determination 
of the executive, a court of inquiry would be formed to examine 
into the occurrence at Foxardo, as well as the charges of Mr. 
Uatulall, as soon as circumstances will permit. 

Since that time I have waited patiently your convenience, re- 
gardless of the anxiety and importunity of my friends, not wish- 
ing to press my business on you to the exchision of matters which 
might now appear to you of more importance to the public in- 
terest, than the investigation of my conduct in the Foxardo af- 
fair, or the charges against myself and others, as contained in 
Mr. Randall's statements. I must beg leave to observe to you, 
however, that the manner of my recal proves, that, at the time 
your order of the 27th December was issued, the investigation of 
the affair which caused it, was considered of great national im- 
portance, and a note subsequently received (\op\ Mr. Monroe, 
not only confirms this belief, but proves that he still thought so, 
after he had gone out of office. I must also beg leave to observe, 
that whatever opinion maybe entertained now, the punishment to 
me is none the less on account of the change, if any change has 
taken place. The affair of Foxardo was the occasion of my re- 
cal — the affair of Foxardo was the occasion of my being displaced 
from my command — it is that affair which now keeps me suspend- 
ed from the exercise of my official functions — it was that which 
caused you to pronounce censure on ine, to punish and degrade 
nie, before any complaint against me, before trial, and before I 
was called on for an explanation. 

If, sir, opinion is changed ; if, by information since received 
from other quarters, you have been induced to believe that the 
j)ublic interests do not require so much haste in the investigation 
as you at first supposed, it would seem but just that my own anxie- 
ties, and the anxieties of those whose peace of mind I regard, and 
good opinion I highly respect, should be relieved, by some inti- 
mation of your intentions, with regard to me — that there should 
be in fact some relaxation in the severity of the course adopted 
towards me. 

It is with reluctance that I trouble you with any complaint, 
whatever, but I feel that I should neither do my duty to myself, 
to what I oue to others, and indeed to the service to which I be- 
long, if, by a longer silence, I gave reason to believe that [ acqui- 
esced in a course of conduct towards me, which, when a full in- 
vestigation takes place, and all the facts are known, few, I think, 
will acknowledge is founded on justice. 

The executive, it appears, has decided that a court of inquiry 
shall be ordered to investigate my conduct. Wliy then deprive 
me of the op|)ortunity of making my explanation, by delaying 
the execution of the executive will? Upwards of six weeks have 
elapsed since I reported my arrival here, and, as yet, I only know 
the determination of the executive.^ 

The time when, the place wliere, and by whom the investiga- 
tion is to be made, are unknown to n^e. No definite period i* 



il3 

rixed on for the holding of the court, and I therefore most se- 
spectfuUj ask, what is your deterinination with respect tome? 
that I may know what course of conduct it would be proper for 
me to pursue. 

I have the honor to be, 

Vour obedient servant, 
(Signed) D. PORTER, 

Hon. Sam'l L. Southard- 



(No. 8.t) 

Captain Porter has the honor, respectfully, to state to the Pre- 
sident of the United States, that, agreeable to the suggestion of 
the President, he, on the l6th of last month, addressed a letter 
to the Secretary of the Navy, requesting an investigation of his 
contluct in relation to the atfair of Foxardo, and the charges of 
Mr. Randall, as early as was consistent with the public interests, 
and on the same day he received what purported to be the Secre- 
tary's reply, informing him that the executive had determined 
that a court should be formed to examine into the occurrences as 
sOon as circumstances will permit. Captain Porter consequently 
Waited with patience until the 13th of this month, when, not be- 
ing able to learn that any steps were taken towards the accom- 
pUshment of the executive will, he again addressed the Secretary 
in the most urgent but respectful manner, to cause his conduct to 
be investigated, and allow him, if innocent, to relieve himself 
fruui the truly unpleasant situation in which the order for his re- 
cal lias ])laced him. No notice has yet been taken of this re- 
quest, and captain Porter, despairing of justice from any other 
quarter, begs and intreats that the President of the United State?, 
will cause it to be rendered him. 

Jipril 17, 1825. 

[Note, this letter was never published, till it was produced and 
read, by the judy;e advocate, on this trial ; as stated in the min- 
utes ; untef p. 44 and 48.] 



(No. 9.) 

Navy Department, ^pril 20, 18£5- 

Sir: Knclosed you will receive a copy of the precept, which 
has been issued for a court, to make the inquiry, instituted by the 
executive, into your conduct at Foxardo. — You will perceive that 
the same court is also directed to make the inquiry which has 
been granted at your own request. 

Ill your letter of the IStli instant, which has been received, it 
created some surprise lo find the declaration, that the " positive 
15 



114 

injunction" in the letter from the department of the 27th De 
ceinber, 18'34, to " procceel, without unnecessary delay, to this 
place," '• deprived you of the opportunity, without taking on 
ytturself great responsibility.of obtaining, by personal application, 
the written testimony necessary in the case." By referring to 
that letter, you will liml that you are expressly charged to " bring 
with you those otlicers whose testimony is necessary, particular- 
Jy Lt. Piatt ; and such written evidence as you may suppose 
useful," for the " full investigation," which it was declared the 
importance of the transaction demanded.* 

No change has taken place in the views of the Executive, 
cither as to the necevssity or character of the investigation, and 
any delay which has occurred in proceeding with it, must be at- 
tributed to other causes. 

in relation to that part of your letter, in which yon say, "the 
affair at Foxardo was the occasion of my recnl ; the affair of Fox- 
ardo was the occasion of my being displaced from my command; 
it is that aftair which now keeps me suspended from the exercise 
of my official functions," it is proper to remark, that although 
that affair was the immediate cause of your recal, yet you are not 
ignorant, that it was the purpose of the departtiient to recal you 
from that command for other reasons, as soon as it ivas found con- 
venient to substitute a competent officer in your place,^ a purpose 
only prevented by this transaction, ichich intervened previously to 
its execution. 

jNo other notice of the style and manner of your letter is 
deemed necessary at this tinte, than to remind you of the rela- 
tion which subsists between you and the department. 
I am, very respectfully, s^r, 

Your most obedient servant, 
(Signed) SAM'L L. SOUTHARD. 

Com. David Pouter, U. S. JWivy, present. 

* Those acquainted with the gcog^raphy of the West-Indies, need not be 
informed tluU it rcquiies more lime to ^o from Thompson's Island, where the 
Secretary's orders t'onnd me, to St. Thomas's \s liere heutenant Piatt was, and 
where the documents were to be obtained, tlian to come from Tliompson's 
Island to the Unhed St.ates. The public, therefore, will be able to judge 
whether 1 should have been justitied by the Secretary's orders in obtaining, by 
personal appl cation, the writ ten testimony necessary in the case. 

D. P. 

■j- On the 19th of October, 1824, while at Washington, before going to the 
West-Indies, I requested, for various reasons, among others ill health, and ap- 
prehension of a V\ cst-India climate, that the Secretary would order me to be 
rf//ei'erf from the command of tile squadron. The Secretar}-, in his reply to 
this application of the -,1st, informs me that if I had made my application ear- 
licr I should have been rel ert'd, and a succcssw appointed, hut having failed to 
do so, and the presence of a comn»ander on tlie station being indisjjensable, 
I was ordered to proceed. " When it is convenient to the department," (says 
the Secretary,') "your wish to be relieved shall l)e gratiii''d." It is to this in- 
timation the Secretary alludes, when he remiiids me of the purpot.e of the 
department to recal mc. 1). V. 

[These two notes acpompanled the letter as published in the pamphlet] 



115 

(No. 10.) 

Navy Department, »May Q8th, 1825. 

Sir: The court of inquiry, lately assembled at the Navy Yard, 
Washington, has closed its examination into the matters submit- 
ted to it, and made report to the department. 

I am instructed by the Executive, to inform you, that it has 
been found necessary that further proceedings should be had, in 
relation to the transactions at Foxardo, and that, iti the course of 
a few days, charges will be preferred, you will be arrested, and a 
court-martial summoned for your trial. 

1 am, very respectfully, Sir, 

Your obedient servant, 

SAML. L. SOUTHARD. 
Captain David Porter, U. S. A''avy. 



(No. 11.) 

Washington, May SOthf 1825. 

Sir : Late on Saturday night, (the 28th,) 1 received from your 
messenger, your communication of that date, informing me tliat 
the court of inquiry liad closed its examination into the matters 
submitted to it, and made report to the department; also, appriz- 
ing m<' of the intentions of the Executive with regard to nte. 

Ignorant, as I am, ol the report of the court, I can form no idea 
of the nature of the charges intended to be preferred against me, 
the motives of the Executive, or (he object of tiie notiticatio'! — I 
have the lionor, therefore, to ask of you the necessary information 
to enable me to prepare for my defence. 

With great respect, 

Your very obedient servant, 

d. porter. 

lion. Sam'l. L. Southaud, 

Secretary of the J^Tavy. 



(No. 12.) 

W^ashington, June 2, 1825. 

Sir: The accompanying pamphlet, which was put to press 
shortly after the termination of the proceedings of the court of in- 
quiry on the Foxardo aff'air, contains all the explanations 1 shall 
ever be able to make in justilication of my conduct. 

[ never had, at any time, any doubts of the propriety of the 
course 1 pursued — nor have I now: and it will be the source of 



116 

great rep;ret to me, if, after a perusal of the pamphlet, further pro 
ceedings in the case should be thought necessary. 

If it be thougi>t that 1 have erred in judgment, the purity of my 
intentions, I presume, cannot be doubted. 

1 have the honor to be, 

"With great respect, 

Your obedient servant, 

D. PORTER. 
Hon. Saml. L. Southard. 

[J^ote. This letter was originally dated, by mistake, May S.^J 



(No. 13) 

Navy Department, 15th June, 

Sir: Your letter, transmitting a pamphlet respecting the pro- 
cfeedings of the court of inquiry, an(l the transactions at Foxardo, 
&c. was received, and the copy, endorsed for the President, im- 
mediately delivered to him. 

It is the cause of surprise, that you should have considered it 
proper, while your case and the report of the court of inquiry were 
still under the consideration of the Executive, to make a publi- 
cation relating thereto, and especially a publication in so many 
respects deficient and inaccurate. 

I am, very respectfully, &c. 

SAML. L. SOUTHARD. 
Com. David Pouter, U. S. JSTavy. 



(No. 14.t) 

Meridian Hill, June 14, 1825. 

Sir: I have received your letter of yesterday's date, ac- 
knowledging the receipt of a pamphlet published by me, respect- 
ing the proceedings of the court of inquiry, and tiansactions at 
Foxardo, &c. and expressin,. vour surprise that I should have con- 
sidered it proper, while my case and the report of the court of 
inquiry were still under consideration of the Executive, to make 
a publication relating thereto, and especially a publication in so 
many respects " deficient and inaccurate." 

1 beg leave to state to you that the publication alluded to was 
put to press, and nearly leady for distribution, before I received 
any intimation from you of an opinion on the part of the Execu- 
tive that further proceedings in the case were deemed necessary ; 
an intimation which occasioned to me great surprise ; and it was 
only with the hope of removing from the mind of the Executive 
an idea of this necessity, which induced m« to circulate it aftet 



117 

being so notified, as you will perceive by the note accompanying 
the jjamphlet sent }oii a few days after j'diir notification, which, 
paiclon ine, sir, [ did bi'lieve was intended for tlie sole purpose oi 
stopping my put)lication, as I could find no other motive tor it, 
nor have I yet been able to lind any other, as I am to tliis day not 
arrested, as I was inforuie<l by you I should be. 

If, by an intimation of the deficiiMv^ies and inaccuracies which 
my paiujihiet contains, it is intended to convey the idea of a wil- 
ful mi'^rcpresentation on my pari, I bcs; yuu to point out in what 
it C'lni^ists. The record of tiie proceedings, as published, are co- 
pied from the record of the judge advocate; and the documents, 
whether rejected or otherwise, pn* or against me, sb far as I could 
possess myself of them, acconipanvi;ig the publication ; and I cer- 
tainly have not omitted any a^-uivst me that were admitted by 
the court as testimony ; to the contrary, I have inserted one of 
that character, which was rejected by the court as unauthentic, 
to wit, the Porto Rico government publication. 

There are one or two triilinc; typographical errors, the fnost 
important of which is the word clothes instead of coiours, in the 
testimony of Mr. Piatt, page 15, and I think an omission to itali- 
cise the woids '' fearful odds," in page 37, which surely can not 
be the inaccuracies and deficiencies alluded to, as the first error 
is calculated to operate against myself, ami the other, if it really 
exists, is of no in)portance. There is also an unimportant letter 
from you to the court, transmitting the rejected documents, wliich 
by a note in page fJl, and the report of the court, which, by a re- 
nnirk in page 5-2, I acknowledge not to be in my possession. The 
first was refused to me by the judge advocate; the latter, I am 
still igiH)rant of; but the publication of both 1 now respectfully 
invite. 

The anonymous publication in yesterday's Journal, of the same 
date of your letter, and taken in connexion with the language of 
it, leaves no doubt of the source whence it originated. I, conse- 
quently, considering my relationship to the department, feel re- 
strained from making suitable comments thereon. It is, there- 
fore, only left for me to express the hope that the promised pe- 
riod for rectifying the errors, and supplying the deficiencies, which 
are said to exist in the pamphlet, may soon arrive; and until it 
does, 1 hereby voluntarily pledge my " sacred honor," that none 
will appear in it, except those 1 have indicated, so far as I could, 
by every effort on my part, obtain a knowledge of the proceed- 
ings of the court, and 1 have no doubt I have obtained them cor- 
rectly. 

If it is intended to intimate that the- reasonings contained in 
my defence are tallacious, and present an improper view of the 
subject, I can only say, they are tlie expressions of my honest, 
unaided opinions and convictions, and that I should have deli- 
vered them before the court, had I been allowed the opportunity 
of doing so. Tltey are before the public; the public will judge 
©f their value ; and [ now more than ever feel the necessity of 
appealing to its decision. 1 am not impatient of it, and wait the 
convenience of the departmetit, in whatever nieasuresit may think 
■proper to adopt toward me. 



11» 

I take the liberty to remind you that I am still ignorant of thp 
opinion of the court of inquiry, on the charges of Messrs. Ran- 
dall and Mountain, and to request it may be laid before the pub- 
lic, that it may be able to judge whether I am innocent or guilty 
of lliem. 

If the court has pronounced me innocent, I am entitled to all 
the benefits of tlieir opinion ; if I am guilty, I am unworthy of 
holding my commission, and should wish no longer to disgrace it. 
1 have the honor to be. 

Your very obedient servant, 

D. PORTER. 
Hon. Sam'l L. Southard. 



(No. 15.) 

'[This is " the anonymous publication in yesterdaifs ']om'nn\,''' 
mentioned by commodore Porter in the preceding No. 14, which 
publication bears the same date with the Secretary's last letter. 
No. 13, vi'A. June 13 : and is published in the National Journal 
of the I4th. See a copy of the same, ante, p. 66, and Peter 
Force's evidence concerning; the same, ante, p. 52. and commo- 
dore Porter's reasons for offering evidence of the Secretary's be- 
ing the author of a preceding publication, in the National Intelli- 
gencer, of the 5th May ; ante, p. 57 — 8.] 



[To justify the tone of dissatisfaction and complaint, in com- 
modore Porter's part of the foregoing correspondence, the follow- 
ing documents were produced and cited, on his part.] 

(No. 16.) 

A letter, dated April 9th, 1823, from the Secretary of the Na- 
vy to commodore Porter, in which a reference was made to cer- 
tain documents, therein enclosed, preferring serious and heavy 
complaints, from the Spanish minister, against captain Casfiin, 
then commanding the Peacoc', ; on account of the capture of a 
Spanish schooner, called the Car/upw, or Galliga the third. These 
documents consisted of a letter from Mr. Anduaga, tiie Spanish 
minister,date(l March 7, 1823, setting forth these complaints, in 
the most vehement style of crimination ; and charging captain 
Cassin with tlie most illegal violence, and wanton abuse in the 
instance of that capture : a declaration, under oath, of the Span- 
ish master and mate, and a protest of the master and crew, pre- 
tending to verify the acts chaij^ed by Mr. Anduaga; and which, 
if true, would have been highly criminal ; but which were after- 
wards proved to be without any foundation. The Secretary of the 
Navy gave captain Cassin the option, either to retarn home, and 
make explanations in person ; or to transmit a written explana- 



119 

t\or\.(a) The latter course was adopted; the explanation was 
perlectly satisfactory; and nothing more was heard of the com- 
plaint. The object of this evidence was to show the inequality 
between the treatment of commodore Porter, in the manner and 
circumstances of his peremptory recal ; and the treatment of 
another officer, gravely and oilicially accused of a heinous oiVence. 



(No. 17.) 

The resolution of the House of Representatives, of the 27t\\ 
December, 1824, cited under the first charge; as in connection 
with the above-cited letter of recal, of the same date ',(!)) and now 
cited, under this specification, as concurrent evitlence, with the 
delays and suspense, complained of in the foregoing correspon- 
dence, that he was sacrificed, rather to collateral views and mo- 
tives of expediency and policy, than to any genuine sense of im- 
propriety in the act imputed to him. 



UNDER THE SECOND SPECIFICATION. 

Specification 2. The publication of "a \)a.m\)h\et, pinportin^ 
to contain the proceedings of the said court of inquiry;" wiiich 
is charged as having been done, " after such court luid terminaied 
its inquiries, and had transmitted its report to the Secretary of 
the Navy ; and before the executive had published, or authorized 
the publication of the proceedings." 

The only evidence, adduced in support of this specification, 
(or that we imfer to have been so intended, for nothing was said 
about the application of any evidence to it) were the printed 
pamphlet itself; and the letter from commodore Porter to the Sec- 
retary of the iSavy, dated June 2, 1825, with which were truns- 
mitted copies of the pamphlet, for the use of the vSecreiary. ;;iid 
of the President. Reference is m.Hleto these documents, \n '.he 
minutes of the court's proceedings, ante, p. 49. Tr.e lf(re! it- 
self is lound among the series of correspondence, under 1st spe- 
cification. [Ante, p. 1 15, No. 12.3 

Tlie pamphlet had just been published, when so transmitted to 

the Secretary: which, as the specification stales, was after the 

court had completed all the business before it; and had sent in 

the final result of its inquiries, to the Navy f>i;.artment: where 

I the report had remained ever since tiie 9th 0! May. The first 



(a) These documents were delivered to tlie coiiil, witiiiVit retaining copies; 
which we huve not since been able to obtain : but vouch lor the correctness 
with w'.iich the suljstunce and ^\wc\ ;ire above cited. 

(t) Ante, p. rS, No. 3, No. 4, is. n. (a) 



120 



notice ot any ultetior proceeillng, being in the contemplation oi 
the executive, "as tl\e Socieuny's letter of \Jay 28, 1825: 
{ante, p. 1 15, No. 10) when tlie pan'tphlet was printed, and just tea-, 
dy to bo issued li oin the press. 

"Asuiiunaiy of tl>e evidence, explaining the general character 
and ohjoct ui' (he paiuiihlet, and the «'.ircumstances, from which 
it originated, will be sulhcicnl to illustrate as well its applica- 
tion to liie matter of cliarge, here speciiie<l ; as the motives of ihC' 
author for tlic puldicatioii. 

Pursuant to the intimation contained in the Secretary's letter 
to comuKulore Porier. of the Itilh March, Vb-25, (ante, p. Ill, 
No. 6,) a warrant was issued, on tiie 19th April, 1825, directed to 
Isaac CLauncey, esq. captain in the Navy, &c. ordering a court 
of impjiry, consisting of captain Chauncey, president, and ol cap- 
tiiins \\' . M. Crane and G. C Head, members, and R. C Coxe,- 
esq. judi^e ad vocitte, to assemble at the Navy Yard at Washing- 
ton, on ilie 2d i^lay then ensuing,. 

vVheri the court met, on tiie day appointed, commoiloie Por- 
ter interposed some exceptions lO tiie formaiitm of tiie court and 
to the tenor of the warrant, umh-r wliicli it wis constituted: to 
the former as beinij composed of a nntjority of oilicers juiiioi- to 
hin»seif: to the second as not embracing the specilic subject of 
inquiry, which he had requested to be investigated, lor the viodi- 
ciiiion'of himself and his olVicers; as indicated in his letter of 
the 2d of March :(a) and which the Secretary was uiideistooil to 
have promiHcd, m his said letter of the l6th March, in the course 
o( discussing these objoclions, the court took exception to some 
expressions, in a written address of tlie commodore, as an itide- 
;:orous reilection upon the court: and, in order to guard against 
a repetition id" the ollencc, passed an order reijuiring all cimimu- 
jiicatioiis from the comuiodoie, to pass the inspection of the juilge 
advocate, before being submitted to the court. The commodore 
explained and disuvovvcd, in tlie most unequivocal and satislac- 
torv ioatmer, as he conceived, the otten.^ive construction. [)Ut upon 
the" passage of lus address excepted to by the court: but tlie in- 
terdict of direct inteivourse between liim and the court was not 
revoked : for which cause he took a f.irmal leave, and during the 
residue jf the imjuirv, withdrew hiaisolf from all concern witl» 
the busmrss of llie coy\tr.(b) He was nevertheless permitted to 
take c.opi> s frmn the otlic;al minutes of the court's pioceedings: 
which he eukployed clerks to Oo. After the court had >eiit in its 
final report, he f(mnd his copies of the minutes, in some respects, 
uicompieic; especially in regard to some of the ilocuments, 
which his clerks had mnitted : and he apj)Iied to (he judge advo- 
cate to supply the detitiency ; wlio answered, in substance, that 
r.he inveiitigation being then completed ; and the result trausmit- 

;c)Am1.% p. HO, Nn.4. ■ , •, , 

{/i) illii tliSpUtC sViil l)f (UOit: ii.iilV t:\i!luU.A'. U, si Allij-' lliC CViaoilCC U'.Ktor 

^i'liisoqutal sptt.li^ja'Jou: onlj uo [iioch .s mcir.ioiifcl licrc u.> is iKce.ssaiJ 

.... ■.■;c-- '■:<- •>■. ■■'■'!«■'. ; iui •.'>■ riluiti ■IK- ij;utive oi' its.]j'uL'liCutioJi. 



121 

ted fo the government, it was not proper for him to give out any- 
further COpiQS.(c) 

The court of inquiry prosecuted the investigation till the 9th 
May : on which day it made and transmitted its final report, as 
above stated: commodore Porter in the mean time, offering nei- 
ther evidence, explanation, nor defence ; nor taking any part in 
the business of the court. Nothing further was heard on the sub- 
ject, till the Secretary's said letter, of the 28th May, 1825, an- 
nouncing the determination of the President, to order a court- 
martial : at which time the pamphlet was printed, and nearly or 
quite ready for publication. 

The foljowing is the title of the pamphlet: 

"An exposition of the facts and circumstances which justified 
the expedition to Foxardo, and the consequences thereof; to- 
gether with the proceedings of the court of inquiry thereon, 
held by order of tlie hon. Secretary of the Navy. — By D. Porter. 
JJelwc mHiti imilta, o/nni.s aliquid, nemo satis. — Extremis maiis^ 
ex'trema r^jutrfja." 

A dedication was prefixed, as follows : 

" To JOHJY qUIJ^CF JiDJiMS, 

PuESIDKNT OF THE UnITED StATES, 

This humble effort to vindicate my conduct and character is 
must respectfully dedicated by his very obedient, and faithful ser- 
vant, D. PORTER. 

Washington, May 1), 1825." 

Which was followed by an advertisement in these words : 

" The reader will bear in mind that when I was recalled from 
my comma^id, to account for the affair at Foxardo, I pledged my- 
self to justify it.^ By the conduct of the court, to which the sub- 
ject was referred for investigation, 1 was driven from its presence, 
and prevented from making the explanations on vvhicli 1 founded 
my justilication.t Therefore, to redeem my pledge, I submit the 
following sheets. D. P." 

This pamphlet consisted of a voluminous and miscellaneous 
collection of documents, connected with commodore Porter's com- 
mand in the West- Indies ; with occasional notes and illustrations; 
and a formal defence of his conduct, in the'affair of Foxardo : the 
pamplilet also contained the minutes of the proceedings of the 
court of inquiry, as copied by his clerks ; and as many of the do- 
cuments appended to the minutes and proceedings of the court, 

(t) The circumstances of this application to the judge advocate and his 
answer, will also be more fully stated, in a subsequent part of the case ; only 
so much is here adverleii to, as shows how completely the court of inquiry, 
with tlie investigation referred to it, was funclua ujjicio, when the pamphlet 
waft published. 

* Keferriiig' to his letter of the 30th January, 1825, published in the National 
Intelligencer, of the 30th March. (Ante, p.'l09, No. 2.) 

■\ lleferring to the interdict of direct intercourse between him and tlic court : 
which had caused him to withdraw from the coml. 

IG 



1^ 

as wfire in his possession. The alleged deficiencies of the pub- 
lished minutes of these proceedings, in point of accuracy, and the 
admitted incompleteness of them, as a full and formal record, 
with the causes and explanations of the same, constitute th° sub- 
ject of the next specification : for the present purpose, 'tis only 
requisite to give an adequate idea of the desiu;n and general scope 
of the pamphlet, in so far as it " purports to contain the proceed- 
ings ol the said court of inquiry." Of the 107 pages of this 
pamphlet, about twenty were taken up with the minutes of the 
proceedings, comprising the oral evidence delivered before the 
court, as copied from the official entries by the clerks employed 
by commodore Porter, interspersed \vith some remarks, in notes 
by himself: about sixteen, with copies of papers and documents 
which had been attached to the said proceedings, and returned 
with them to the Navy Department: leaving about seventy pages 
of additional matter; of which the defence occupied near twenty- 
pages: a defence never laid before tlie court of inquiry, on ac- 
count of the difficulty between the commodore and the court, 
which, as he says in the advertisement to his pamphlet, had driven 
hrm from its presence. 

The general scope of the defence, in so far as it can be, at all, 
connected with any matter deemed exceptionable in the publica- 
tion, may be collected from the following extracts: 

" Defence. — Having been displaced from my command, by or- 
der of the Secretary of the Navy, to furnish such explanations 
as may be required of every thing connected with the cause, 
origin, progress, and termination, of my " transactions" at Fox- 
ardu : I must refer to the letters of lieutenant Piatt, Mr. S. Ca- 
bot, and Mr. Bergeest, for the origin ; to my letter to the governor 
of Foxardo, and my official report to the Secretary of the Navy, 
for the progress and termination; and to the following explana- 
tion for the cause. 

" 1 rest my justification on the laws of nations and of nature, 
highly approved precedents, and the orders of tlie Secretary uf 
the Navy." 

The defence then proceeds with an argument, strictly confined 
to the topics of justification, thus premised ; till we come to the 
following passage : 

"I might stop here with a perfect confidence of an acquittal 
from the charge of rashness and indiscretion, in the violation of 
the territorial jurisdiction and immunities of Spain, or of any dis- 
position to ofter to that government any indignity or insult ; but as, 
without asking of me explanation, and without complaint from 
Spain, or from any other quarter, it has been thought proper to 
anticipate even the resolution and wishes of Mr. Archer, (already 
distinguisluil for his active hostility towards me in the trial of 
lieutenant K<'nnon,) by ordering me from my station, to explain 
tiie transactions at Foxardo, which it has pleased the Secirtary of 
the Navy to term " extraordinary ;" and as I am placed before the 
world as a c(milemned and degratled officer, it is a duty I owe to 
myself, as well as to the service to which I belong, and it may be 
useful to others to know, that in all this " transaction" I was act- 
ing in as strict conformity with the letter and spirit of my inetruc- 



123 

tions, as tlie nature of the ease would admit of; that it was pro- 
vided for as near as could be imagined, bv the government, and 
tliat I have in no instance departed from my instructions, so far 
as [ could by repeated perusal understand them. I have perceived 
no obscurity in them, and I complain of none. I believe I un- 
derstand them, and the intentions of those who drew them up J 
and without national or natural law, or precedent, I feel a confi- 
dence that the responsibility of my conduct at Foxardo, if impro- 
per, rests upon tl«ite who issued the orders, and not on me who 
executed them. I do not wish it understood, however, that I dis- 
pute the propriety of the orders — to the contrary I fully concur 
in the doctrine laid down in them. They are framed on the laws 
of nations, were drawn up by one well versed in them, and were 
intended to supply the want of a knowledge of international law 
on my part. 1 not only subscribed to that part which authoriaes 
my landing and pursuing pirates on the territory of a foreign 
power, and denounces those nations so lost to a sense of respect 
lor tiieir own character and interest, and the respect of others, 
as to refuse to put down piracy, much less to aftbrd them an asy- 
lum and protection ; but 1 subscribed to the yet stronger measures 
which have been recently recommended by the executive — nothing 
short of authority to land, pursue, and hold the authorities of 
places answerable for the pirates who issue from and resort there- 
to make them answerable by reprisals on the property of the in- 
habitants, and to blockade the ports of the islands. Nothing short 
of these measures can put down the disgraceful system. I also 
coincide in opinion with the President, that neither the govern- 
ment of Spain, nor the government of either of the islands, (Porto 
llico and Cuba,) can with propriety complain of a resort to cither 
of those measures, or all of them, should they be resorted to, as 
the United States interpose their aid for the accomplishment of 
an object, which is of equal importance to Spain and her islands, 
as well as to us. To the contrary, it should be expected that they 
will faithfully co-operate in such measures as may be necessary 
for the accomplishment of this very important object. What- 
ever measures, however, may be resorted to by the United States, 
the first thing necessary to secure success, is to protect, coun- 
tenance, and support the officer employed to execute them; and 
in any measures which he may adopt requiring energy of action, 
he ought not to be discouraged and degraded by punishment be- 
fore complaint, or removed from his command without being al- 
lowed the opportunity of explaining his reasons for his conduct. 
Without such assurance, no officer in his senses would willingly 
undertake the delicate duties which I have been performing; and 
if compelled, w»uld, from his apprehensions of sharing my fate, 
scarcely meet the expectations of the government and people of 
the United States. The discouraging circumstance of my remov- 
al for the offence of landing on Porto Rico, and punishing the ac- 
cessories of pirates, the authorities of Foxardo, may have a much 
more important ettect in retartling the suppression of piracy, than 
is at present apprehended. So long as the governors and people 
of the small towns of Porto Rico and Cuba, are satisfied that they 



124 

may imprison us with impnnity, and that punishment certainly 
follows any attempt on our part to obtain redress and security 
to our persons, so long the suppression of piracy is impossible; 
and he who on those terms is willing to undertake it, loses sight 
of his own respectability, and of the respectability of his nation 
and flag." ' 

The argument is then continued on the same plan, till we come 
to the concluding remarks. 

•' That my motives were disinterested, is certain, from the cir- 
cumstance of my confining myself to the single object of pro- 
tection to the persons of our citizens. I had nothing personally 
to hope for, or to gain, by securing their safety; and I had cer- 
tainly much to lose in making the attempt, for I placed my life at 
hazard. 

"If I have failed in justifying myself, I trust that the failure 
will be ascribed to the peculiarly delicate duties which have been 
confided to me, involving nice and intricate questions of national 
rights, and a zealous desire to act fully up to the wishes of the 
government ; and not from a w-ish to act in opposition to its views, 
or to infringe on the territorial rights and immunities of others. 
Should there appear the slightest evidt'iue of my having, for a 
moment, wilfully disregarded what was due to my own country, 
and the respect due to the government of Spain, I shall submit 
■with resignation and cheerfulness, to tiie severest punishment 
that can be inflicted on me, if it even extends to depriving me 
of my commission, which I should then be unworthy of bearing. 

" For merely doing my duty, I have never asked, nor expected, 
any reward, beyond the approbation of my country; and if it 
should appear, that I have, in this instance, done no more than my 
duty, I confidently hope and expect that I shall escape all punish- 
ment, beyond what 1 have already felt. 

•' I have stated all the e;rounds which, in my opinion, justified 
my undertaking the expedition to Foxardo^ 1 acted on letters 
of an official character, already referred to, atid statetnents which 
I had no doubt could be relied on. I acted on what I believed a 
fair construction of the laws of nations, the intention of those 
who framed my orders, and the public voice. I did not think it 
necessary to go tlirough the formality of collecting evidence on 
oath, to justify me in the attempt I was about making to secure, 
in future, our officers from insult ; had I done so, my object would 
have been defeated in the time that would have elapsed, and the 
alarm that would have been excited by an inquiry, which could 
not have been kept secret. 

" Promptness was necessary, and I felt satisfied that the let- 
ters which I already possessed, were a suflicient justification for 
my proceedings. 

" The following documents, which have been rejected by the 
court, and which I do not now oft'cr in vindication of my conduct, 
but in confirmation of the letters of lieutenant Piatt, Mr. Cabot, 
and Mr. }ievge&st,(a) are so full on the subject of the robberies 

(o) vide. These three documents as introduced, on the pai't of the prose- 
cution, in this tfial ; ante, p. 98, 99, 100, No. 13, 14, 15. 



125 

and piratical depredations from Foxardo, and the piratical charac- 
teruf the aiitliorilies and people of that part of Hoito Rico, that 
I deem it unnecessary to make any continent on them. Theoom- 
pliciited system of villainy they unfold i;> disgraceful to the na- 
tion to which they belonu;, and a continuation of it will be dis- 
graceful to the rest of the world, and particularly to those nations 
most e.\pt)sed to their depredations. The pirates of Cuba, of Al- 
giers, Tunis, and Tripoli, offer no parallel." 

All the preceding correspondence, produced under the first 
specification, especially comnM)dore Porter's letter of June 2, 
('ante, p. 115, No. IQ,) is cited under thisalso;as explaining the 
motive and the necessity for the pnliilcution of the pamphlet. 



UNDER THE THIRD SPECIFICATION. 

Specification 3. " An incorrect statement of the proceedings 
Of the said court of inquiry," as given in the said pamjthlet. 

'Tis thought that the merits of this part of the charge, may be 
more clearly elucidated, by the collation and methodical arrange* 
ment of all the evidence, documentary or oral, supposed to be 
connected with it. 

The pamphlet, in which were published such parts of these pro- 
ceedings as were in commodore Porter's possession, has been tre- 
quetitly referred to, in the course of this report: and its history, 
character, objects and contents, are niore particularly described, 
in the foregoing summary of the evidence under the second spe- 
cification. 

The manner in which commodore Porter availed hip^self of his 
privilege, to take a copy of the proceedings, and the care and 
pains, he took, to have the copy complete and correct, may be col- 
lected from the evidence of John Simpson, lieutenant J. T. Rit- 
chie and xMartin King. (Ante, 53, 55 and 5(5.) 

On the 9th May, the inquiry was brought to a conclusion, and 
the report of the' court was transmitted to the Navy Depart- 
ment. 

The c(tpy of the proceedings, taken by com. Porter's clerks, 
>Viis found to be incomplete: the only deficiencies, at that time 
apparent, were the report of riie court ; and a letter from the Sec- 
retary of the Navy, transmitting the documents, before described, 
as "rejected documents," and communicated by the judge ad- 
vocate t(t the court of inquiry, on the 7th May, as before stated, 
p. 96 and 104. Application had been made to the judge advocate, 
(after the inquiry had been brought to a close.) to be permitted 
to complete the copy, from-the origtnal record or minutes in his 
hands: to which application he returned the following answer: 



126 

Georgi!to\vn, May 21, 18£5. 

Sir : After mature reflection, I regret tliat it is out of my pow- 
er to comply with the request marie on your behalf, for a part of 
the record of the proce'eHings of the court of inquiry, in relation 
to tiie Foxardo atfair, which your clerk accidentally omitted to 

So long as you participated in the proceedings of the court, and 
the investigation remained uncompleted, 1 considered myself as 
authorized to communicate to you, the proceedings of the court. 
"^Vhc investigation is, however, ncnv completed; — the record has 
been transwiitted to the department ; and is beyond my control. — 
My impression is, that I am not at liberty to communicate my pri- 
vate notes of the proceedings of the court, under these circum- 
stances ; particularly for the purpose of being copied, withtjut the 
knowledge and consent of the government. 1 presume, however, 
that on an application to the department, a more correct tran- 
script of the pr<»ceeding3 of the court will be furnished you, than 
it is in my power to atibrd. 

Very respectfully, 

Your obedient servant, 

RICH'D S. COXE. 
Commodore Porter. 

No evidence was given of the nature or extent of the appli- 
cation to which this letter was an answer, but what may be col- 
lected from the context of the letter itself. But, it is perceived, 
that some notice is taken in the minutes ('ante, p. 57) of some 
explanation which the judge advocate desired to make appear 
concerning it. Whether any such was intended to be, or has 
been annexed to the record, is not known. According to our re- 
collection of a written statement shewn to commodore Porter 
during the trial, by the judge advocate, it imported that the lat- 
ter had returned by lieutenant Farragut, who brought the written 
answer of the judge advocate, a special and verbal answer to that 
part of the application, which related to the Secretary's letter : 
namely, that he had transmitted the letter to the Navy Depart- 
ment without retaining a copy. The object of this statement, as 
understood, was to contradict or explain that part of commodore 
Porter's letter to the Secretary, ('Wth June, ante, p. 1 16, No. 14,) 
which says, that the letter had been " refused to him by the judge 
advocate." Commodore Porter however, insisted, that the only- 
answer he ever received from the judge advocate, was the JtTJt- 
]?e?i one, above given ; which was delivered to hicn by lieutenant 
Farragut, witht»ut any verbal supplement.('rtj 

On the 28th May, commodore Porter is informed by the Secre- 

(u) Norr.. Why any distinction should have been made, as to the propriety 
of supplying- one part of tlie record, more than another, was not explained ; 
and certaiiily the nft,so?;.s', assig-ned by the judye advocate, go equally to the 
w/i.'ik. However that be, his wri/fen answer to tile appliication, is the only 
emdau-e of it that wc have. 



127 

tary's letter of that date, [ante, p. 11 5, No. 10.] " that it has been 
found necessary that further proceeding should be had, in rela- 
tion to the transactions at Foxardo ; and that, in the course of 
a/ew rffi^'s, charges vixW be preferred, &c." 

On the 30th May, commodore Porter replies, [ante, p. 115, No. 
11,] that, ignorant as he is of the report of the court of inquiry, 
he can form no idea of tlie charges intended to be preferred against 
him, of tlie motives of the executive, nor of the object of the 
notification ; and, therefore, asks the necessary information^ 
to enable him to prepare for his defence. 

On the 2d June, copies of the pamphlet were transmitted to 
the vSecretary, as containing all the explanations in commodore 
Porter's power to make, &c. and expressing a hope that such ex- 
planations would prove satisfactory ; and dispense with the fur- 
ther proceedings, spoken of by the Secretary. [Ante, p. 115, No. 
12.] 

The first notice he received of any exception to it, was au 
anonymous article, dated June 13, published in the National 
Journal of the Hth, which is referred to, in Peter Force's evi- 
dence; [ante, p. 52,] and given at large, as the admitted pro- 
duction of the judge advocate; [ante, p. G6.] 

This article does not specify tlie cliarge of inaccuracy, as runit- 
ed to the " statement of the proceedings of the court of inquiry;" 
but speaks of •' the recent publicatioyi on the subject of the pro- 
ceedings of the court of inquiry, in relation to tlie aftuirat Fox- 
anlo ;" and of the errors and deliciencies " which exist in the pam - 
phlet referred to." Nor does it give any intimatiim that such 
inaccuracies were to be made the subject of a charge before the 
court-martial ; but simply apprises " the public''^ that the pub- 
lication presents so inaccurate and imperfect a view of that mat- 
ter, that it will, in due time, receive proper attention : it theo^goes 
on to state, as " sufficient reasons for postponing, to a more suita- 
ble period, the rectijicutiiyn of the errors and the supplying the 
deficiencies, which exist in the pamphlet," that " the record of the 
court and statement of facts transmitted to the executive, had not 
been made public; it being understood, that the business had not 
been terminated.^'* 

*NoTE. — What reason commodore Porter had, when he publislied his pam- 
phlet, to conclude "that the business had not been lerniinated," may be decid- 
ed from the following cii'cumstances : — 'I'he record of the court of inquiiy in- 
formed iiim, that it liad terminated its inquiries on the 9th of May : on the 21st, 
the judge advocate informs liiin, thai "tlie mveiitiij;ntioii is now completed;" 
and, therefore, lie lias no longer any right, as judge advocate, to give out a 
copy of any part of the record : 'tis not till the 28tii, (when, as commodore 
Porter in his letter of the 14th June says, the pamplilet had been put to press 
and was nearly ready for distribution,) tiiat he is notified of the " fi.rthei- pro- 
ceeding in the contemplation of the executive :'' and when, twenty-five days 
afterwards, that notice is followed up, by the actual e:%*'ibition of the charges 
(as before sUited, p. 8 and 1",) the ])amp!iloti3 expressly charged as published 
"after the court Lad tenmnatcf! its iiujuiiies." Tl'e gravamai is also 
changed from that urged in tju; Secretuvv's letier of the l.^th June: 
to wit, tliat it was "before the executive had publisiied, or authorized the 
publication of tlie proceedings :" not tliat the " ca.-e and tlir report were still 
under ihc consideration of the executive," as the letter complains. 



128 

On the same Hay (^June 14.) the Secretai^'s letter (be.'jiing pre- 
cisely the same date v\itlt the anonymous article published in the 
Journal,) ii received ; which ackti()wlfd2;ps tiie receipt of the 
pamphlet, transmitted on the 2d June; and that a copy of which, , 
endorsed for the President, had been immediately delivered;; 
expresses siirpi'lse, that commod»»re Porter "should have con- • 
sidered it proper, while his case and the report of the court of ! 
infjuiry were Htill under the cowhide rat ion of the ejcecutive, to i 
make a publication relating thereto, especially one, in so many 
respects, (/('Jzcifz/t and inaccurate.'''* [Ante, p. llG, No. 13.] 

Commodore Porter, on the same day, replies that his pampldet : 
had been put to press and was nearly ready for distribution, be- 
fore he received any intimation of an opinion, on the part of the 
executive, that further proceedings in the case \vere deemed ne- 
cessary ; an intimation which li.id occasioned him great surprise; 
that it was from the hope of removing, from the mind of ttie ex- 
ecutive, the idea of this necessity, tJiat he had been induced to ' 
circulate the pamphlet, after being so notified : a nolitication, 
which he apologizes for believing, was intended for the purpose 
of stopping the publication : for which belief he assigns, as a rea- 
son, that he couid find no other motive for it, as he had not, to 
that day, been arrested, as informed, by the Secretary, that he 
should be. [This refers to the Secretary's letter of May 28, above- 
cited, in wiiich he nntilies commodore Porter of the necessity for 
further proceedings, in relation to the Foxardo affair ; and of the 
determination, "in the course of afetv rfoys," to prefer charges, 
and U> arrest him, and suunnon a court-martial for his trial : and 
to commodore Porter's answer of the 60th above- cited, asking 
for information of the nature of Mie charges, to enable him to pre- 
pare for his defence. T!ie intention, thus notified on the 28th 
May, was not carried into effect till the 22d June, as before stat- 
eil,*aiite, p. 8, lO-^((i) Commodore Porter proceeds, in his reply, 
to say, that if, by the deficiencies and inaccuracies imputed to his 
pamphlet, it be intended, to convey the idea of a wilful mis- 
representation, he begs U> have it pointed out, in what \t consists : 
he describes the means by which he had obtained his copy ; the 
pains he had taken to have it correct ; and insists on and exem- 
plifies his impartiality by the inseition of a document supposed 
to make against him; and which had been rejected by the couit 
of inquiry. He then points out ct-rtain trivial errors, which were 
al! that, after the minutest examination, he could detect ; except 
the omission of the court's re[)ort, and of the unimportant letter 

(a) NOTR. — Of tlio grounds cnn). Porter Iwd, for nsakinj^ tlie complaints, 
expressed in his correspoiidencc, of tlio e.vtjaordmurv pi ocrusliiialifiiis i;f the 
requisite meusurc-s for briiigiiiif tlie idt'.ur to sonjc iifli,--i'iiiinate issue, after his 
rcciil, on the 27tii December, and liis rcpoi-t of himself, as ready for the la- 
vestig'ution, on the 1st March ; and for diawinir the inferences, stated in tlie 
text, ifrom the apparent vacillations of intention rfspecting- him ; the recent 
manifestations of aespateli and celerity, in disposing' of the extremely volvi- 
niinous and complicated trials of commodores t'orter and Stewart, may, fur- 
nish some illustratio.i : the first hiivina' been kept under tlie advisement of 
the eiecutive, about four days, and the lutt.f;r about tvo, before approval. 



129 

from the Secretary of the Navy to the judge advocate: omissions 
which he accounts for, as already stated. He then refers to the anony- 
mous article in the Journal, between which and the Secretary's let- 
ter, the coincidences of date and language, " leave (as he says,) no 
doubt of the source whence it originated ;" and, consequently, re- 
strain him, considering his relationship to the department, from mak- 
ing suitable comments on it. "It is therefore only left for me (he pro- 
ceeds.^ to express the hope that the promised period for rectify' 
ing the errors, and siq}plying the deficiencies, which are said to 
exist in the pamphlet, may soon arrive; and, until it does, I here- 
by voluntarily pledge my sacred honor, that none will appear in 
it, except those I have indicated, sofar as I could, by every effort, 
on my part, obtain a. knowledge of the proceedings of the court; 
and 1 have no doubt I have obtained them correctly." If it were 
the reasonings contained in his defence, that were supposed to 
be fallacious, he declares them, to be " the expressions of his own 
honesi, unaided opinions and convictions; which he should have 
delivered before the court, had he been allowed the opportunity 
of doing so," &c. &c. He reminds the Secretary that he is still 
left in ignorance of the opinion of the court, on the charges of 
Messrs. Randall and Mountain, and requests it may be laid be- 
fore the public. " If the court has pronounced me innocent, I 
am entitled to all the benefits of their opinion ; if guilty, I am 
unworthy of holding my commission, and should wish no longer 
to disgrace it." ('Vide No. 14, ante, p. 116.J 

On the 22d June, the charges were furnished ; with a specifi- 
cation imputing incorrectness to the statement of the said pro- 
ceedings, in the general terms already known : the trial of which 
charges commenced on Thursday, July 7. 

On Saturday, July 23d, ^being the 17th day of this trial,^ the 
judge advocate proceeded to point out the particulars, in which 
commodore Porter's statement was deemed incorrect : ('ante, p. 
50,) and on the Monday following, being the 19th day of the trial, 
presented a " written note of the variances between the original 
record, and the proceedings as published by captain Porter;" 
('noticed in the minutes, ante, p. 50.) (a) 
.' liefore descending into the miniitise of these varUinces, some 

(«) Note. — It is there said, in the minutes of Saturday, July 23, that the 
jutljje advocate then submitted a copi^ of the original record, which was com- 
pared with the original in presence of the court. Such comparison was utterly 
unknown to the accused or his counsel : the first time they saw the oi Iginal 
or knew of its being in court, was when it was produced, on Wednesday the 
Srth, at the examination of Gustavus Harrison ; as stated, ante page 62. 
The note at the foot of that page, tiiat tlie record was then, for the first time, 
produced, should, perhaps, be qualified by adding, to the knowledge of the 
accused or his counsel. All that was .-^een by them on Saturday, the 23d, was 
the M. S. cop)/ of the record in the himds of a member of the coii't, n-ho as- 
sisted the judge advocate in conijiaiing it with the printed pumpliii.t, and 
noting the variances. Tiiese circuiiTstances are mentioned, not as beiiig, at 
all, important in themselves; but merely to account fur the difiercncc be- 
tween our note, page 62, and the entry in the minutes, page 50. 

17 



130 

preliminary explanation of tlie evidence connected witli them, 
mav make them more intelligible. 

The jiulj^e advocate, as recorder of a court-martial, keeps a 
regular jouraal, or minutes of the daily proceedings, which is read, 
next morning, in presence of the court. Of tliis a fair transcript 
is made, signed by the court and judge advocate, and sent to the 
proper department, with the documents annexed : whilst the first 
rough draught of the n\inutos is nreserved by the judge advocate. 
Then what is called the ())w>j/(nl record, is the official transcript 
(so authenticatedj from the original minutes, in the hands of the 
judge advocate. 

In this case, G. Harrison was the clerk employed by the judge 
advocate to make the transcript of the proceedings of the court 
of inquiry, which was signeil and transmitted as the oflicial and 
Original record of the court's proceedings; the whole of which 
vas in the hand-writing of Mr. Harrison, except the minutes «f 
the last day's (Monday, May 9) proceedings, and sundry inter- 
lineations, k,c. in the body of tlie preceding part; which were in 
the hand-writing of the judge advocate. 

The copy obtained by conunodt)re Porter, and used in the pam- 
phlet, appeared in the iiand-writing of three persons ; John Simp- 
son, Sarrazan, and Mrs. Simpson, wife of the aforesaid 

John. John Simpsoi\'s part of tlie copy, comprising nine sheets 
in manuscript, ended about midway of page C* of the pamphlet ; 
of the residue of the copy, four sheets in manuscript and ending 
page :V3 of the pamphlet, three sheets were in the hand-writing 
of Sarrazan, the fourth in that of Mrs. Simpson : but the relative 
extent of their respective copies, upon the pages of the pamphlet, 
was not noted ; nor is it material. J. Simpson took his copy, from 
the transcript made by Mr. Harrison; tiie residue of the copy, 
■was taken froni the original draught of the minutes, in the hand- 
writing of the jutlge ailvocate, before Mr. Harrison had tran- 
scribed the same. J. Simjjson.as has been seen, took great pains 
to make his copy exact ; antl liad the utmost confidence in its ac- 
curacy : he had no assistance, in the comparison of his copy with 
the original; but careiiilly examined it himself. The remaining 
lour sheets of the copy ("coMiprising from p. '27 top. 3-3 of the 
pamphlet,) were most carefully ami critically examined and com- 
pared witli the original by lieutenant Ritchie: who took the pre- 
caution of two readings and comparisons : once reading the copy 
while his assistant followed him on the original, and vice versa (a) 

Mr.Hariison's eviilence,( ante, p. ti3,J touching certain era^ureSy 
interlineationii, and additions, appearing on the face of the ori- 
ii'Jua/ record, (in a diiVoient luuul writing from the body of it, 
which is in Mr. Harrisoivs,,' at pages 7, 8, 01, -25, CG, 31,' 3.2, 38, 
-10 and 41. of the said original record, was explained by a com- 
parison of the san\e with the printeil copy of the corresponding 
passages in the pamphlet: from which it was found that all these 

((?) NoTK. — For all these facts relative to the manner of mr.king- out the 
orii^inal record and the copy, Stc. "Vide examinations of Messi-s. Vinipsoii, 
liltchie and Ilairison, ante. p. 53, 55, oJ— 3 — 4. 



131 

alterations tallied, most exactly, with the variances, in thecorr^s- 

pondirig passages of the pamphlet, between such original record 
and the printed copy : that is, the words erased, or blotted out, 
in tiie original ('and still barely legible^ are J'unnd in the copy : 
while the words interlined or otherwise added to the original, are 
omitted in the copy. All such interlincaiions and additions were 
very distinctly marked and fairly written. Krom these circum- 
stances (\n addition to the direct evidence of Mr. Simpson and 
lieutenant Ritchie, to the accuracy of the copy,j was drawn tho^ 
conclusion, urged in the defence, that these alterations were made 
in the record, after the copy had been taketi from it by commo- 
dore Porter's clerks: and, consequently, that the corresponding 
variances were not produced either by the desiii;n or the mistake 
of the copiers, but by the substitution of a new or altered original : 
considering it of the highest improbability, that there should be 
such exact coincidences betwt>en inadvertent miscopijings, and 
the alteratiuns apparent on tlie face of the original. 

The ju(l;2,e advocate, on the other hand, from the course of his 
examination of Mr. Harrison, ('ante, p. 6!3-3,j is understood to 
insist, that these erasures, interlineations, &c. were not alteratiuns 
of the original record, but weie corrf^c/iwis of errors in Mr. Har- 
rison's trariscripi. The circumstances, on which these opposite 
conclusions rest, are fully and I'airiy before the reader. 

These coincidences will be more clearly comprehended from 
the niore minute comparison which will bo alforded by the judge 
advocate's " written note of variances:" before the introduction 
which, one other explanation is requisite. 

The original minutes of the proceedirigs, kept by the judge ad- 
vocate of the court of inquiry, were not produced in evitlence : 
but, as appears from the examinations of John Simpson and J.T. 
Ritchie ('ante, p. 54 and 56,) certain parts of those papers were 
shown to these witnesses respectively, and a (piestion asked of 
each concerning the same: and when the counsel of the accused 
desired to see them, the same answer was returned as before stat- 
ed in regard to the papers authenticated by J. Jioyle : (a) from 
which it was understood that the paj)ers were shown to the wit- 
nesses, by way of experiment, to see wliether they could be iden- 
tified; and, not being idcntilicd, are presumed to have been with- 
drawn ; as nothing more was heard of them during the trial: so 
much, however, is certain, that the judge advocate declined exhi- 
biting them to the counsel. 

That part of the original minute shown to Lieut. Ritchie, 
('ante, p. 50) and which it was supposed he might have identilied, 
as the original from which the copy was taken, by a maik of seal- 
ing wax, was, it seems, compared with the printed copy of the 
proceedings of the same day; it appears from Lieut. Ritchie's 
answer, that the copy had omitted a ivhole line ; what line is not 
specitied ; but it was remarked that the oiUcial or original record 
of the same days' proceedings, had also omitted about the same 
quantity of matter, necessary to make sense of the sentence ; 

Ca 1 Vtd. tJiis tran«;ic']on stated, ante, p 71 



132 



and which the judge advocate had afterwards inserted in pencil; 
not officially, as understood, but merely to indicate the sense of 
the passage : we say not officially, because the office-copy of the 
record, filed in this trial, omits the words in pencil. If these words 
constituted the omitted line, mentioned in lieutenant Ritchie's 
evidence, then the difference, so far, lay between the first draught 
of the minutes, and the official record made up from them. 

N. B. The part of the original record here referred to, is the 
minute of the last day's proceedings: which, as before stated, 
appears in the hand writing of the judge advocate himself ; and 
not, like all the preceding part of the record, in the hand writing 
of Mr. Harrison. 

List of VARMJVCES voted bij the judge advocate between the 
pamphlet -copy of the proceedings of the court of inquiry, and 
the original record. 

No. 1. Pamphlet, p. 11. 1. 7. "into the matter aforesaid:" 
whereas the original reads "matters.^^ [Note, this variance is 
found in the precept for convening the court of inquiry : where, 
after recapitulating the subjects of inquiry, it announces the de- 
termination of the president to convene a court of inquiry to ex- 
amine '• into the matters aforesaid."] 

No. 2. In the same document, (I. Q\) "and it is also empower- 
ed :" the pronoun " it" not in the original. [Note. Where •' it" 
is used in the pamphlet-copy, " the court" is understood in the 
original ; and is clearly referred to by the demonstrative pronoun 
in the copy.] 

No. 3. This variance is shov,'n by contrasting the two pas- 
sages in opposite columns : 



Pamphlet, page 13. 

"Captain David Porter also ap- 
peared, and being asked whether he 
had any objection to oflTer ag'ainst 
either of the members of the court, 
rephed tliat he had no specific objec- 
tion to individuals, but he objected to 
the materials of which the court was 
composed ; and stated further, that 
lie had some remarks to make on the 
subject, as well as on the precept ; 
that he did not think the court was 
legally formed. The oatli," &c. 



Record. 

" Capt. David Porter also appeared, 
and, beins,' asked whether he had any 
objection to offer against either of the 
members of the court, replied that he 
had no specific objection to urge, but 
tliat he had 9Dme remarks which he 
wished to submit to the consideration 
of the court, after it was organized, 
and previous to its proceeding to 
make the investigation, for w hich it 
was convened. Whereupon the oath," 
&c. 



[Note, this is the entry of commodore Porter's exception to the 
formation of the court, on the first day's session. May 2: in the 
minutes of the proceedings of which day, it is entered as above 
in the record : but on a subsequent day of the court he objected 
to the terms in which his exception had been entered, and request- 
ed the court to have it amended, acccording to what he conceived, 
the true version of the same; and on Thursday, the 5th May, it 
appears, both by the pamphlet-copy an(i the original record, that 
the following proceeding was had : 



133 

•• THURSDAY, May 5th. 

I The court met pursuant to the adjournment of yesterday : pre- 

I sent as before. 

I Captain Porter stated to the court, that on perusing there- 

I'cord, it appeared to him that an omission had been made, which 
he was desirous of having supplied, in stating the proceedings of 
the tirst day. He submitted to the court liis statement of the re- 
marks which he made before the oath was administered to the 
members. The court being of opinion that captain Porter is en- 
titled to have his statement inserted in the record, as containing 
his view of what transpired, directed it to be inserted. It is the 

i words following, viz. Captain Porter being asked," &c. 

Then follows the amended entry of the exception, precisely as 
commodore Porter had printed it in his pamphlet, p. 13. 

From this he concluded that the court had recognized and adopt- 

, ed the amended entry, as the true representation of the passage j 
and that the original entry, in the minutes of the 2d May, was 
to be made conformable : and he accordingly published it as so 
amended. 3 

No. 4. la the minute of lieutenant Piatt's evidence before the 
court of inquiry, giving an account of his interview with the Al- 
calde, on his first visitl;o Foxardo, the pamphlet-copy and the re- 
cord vary, in a particular passage, as follows : 

PampMei,page 15, /. 27. Record, p. 27. 

«I according-ly went to a public "T accordingly went to a public 

house, and took my breakfast. I re- house, and took my breakfast. About 

cei\-cd a message, from the Alcalde, an hour after I finished my breakfast, 

reciuesting me \o call at his office." I received a mes.sage, &c." 

[Note. Tiie record, as originally transcribed by Mr. Harrison, 
gave this passage precisely as it is printed in the pamphlet: the 
words in italics, which are omitted in the pamphlet, constitute 
one of the interlineations, in the hand-writing of the judge advo- 
cate, referred to, in Mr. Harrison's evidence, ante, p. 63.] 

No. 5. ('Same page,) line 38, " clothes,^'' instead of " colours*^ 

[Noticed by commodore Porter in his letter, of the 14th June, 
' to the Secretary. Ante, p. 117, No. 14.] 

No. 6. Pamphlet, p. 16,1. 10. " cofnetP^ instead of ^'confined. ^^ 

No. 7. p. 17, end of 3d line, " w?/" omitted. 

[Note. This error occurs in lieutenant Piatt's evidence, in which 
he states the reason, assigned by him to commodore Porter, fur 
not having sooner made "a written report" of his treatment at 
Foxardo : viz. " that [my] not expecting him so soon, was the 
cause why it had not already been made out."] 

No. 8. p. 20, 7th line from the bottom, after the word, "court,'^ 
" tlie |)aper was" is omitted. 

[Here also the pa«nphlet agreed with the record as originally 
transcribed ; the words omitted being one of the interlineations 
above desciibed. In the record thus amended, commodore Por- 
ter is represented as saying " h;' had some remarks to submit to 



134 

I 
the court, which he read and submitted to the court, [the jwper 
was^ annexed to the record," Sic] 

No. 9. p. 22, 3d line of tlie proceedings of Thursday, "re 
ceiving^^ instead of "perusing.-^ 

['I'his error is found in the printed copy of the passage cited ia , 
explanation of variance No. 3, in which the printed copy makes ij 
liim say "tliat on receiviiis; the record," S:c. instead of "that oa .i 
j;ej'»siMg"," &c. Here also there was, originally, the same agree- • 
merit between the printed copy and Mr. Harrison's transcript of " 
the record: in which " receiving^^ now appears erased, and '^pe- 
ruslng^^ iuterlined.^ 

No. 10. p. 22, 2d line of the last paragraph ("marked F") not in 
the original. 

No. 11. p. 23, first line after paper, "it was accordingly an- 
nexed to the record and marked F," omitted. 

[Note. These two errors are connected, and thus explained. 
The passage refers to a paper presented to tlie court by Com. 
Porter, immediately after the corrected entry of his exception as ' 
above stated, under variance No. 3. The printed copy imports 
that Com. Porter submitted a paper " for the consideration of the 
court, marked P'." It then states the exception taken by the 
court to tlie tenor of this paper, and the offer to the commodore, 
of permission to withdraw it. "Captain Porter declined to 
witiidraw the paper:" and here should have followed the words 
charged as omitted : which words also constitute one of the in- 
itrlincations above described ; Mr. Harrison's original transcript 
having also omitted them.] 

No. 12. p. 23, 17th line from the bottom, after the word, which} 
the words, " holds the highest commission which," omitted. 

[In this passage the court is answering an objection raised by 
the Commodore, to its formation, and the sentence should have 
read thus : 

" But this principle can scarcely be carried to an extent which 
would apply to a court, every individual of which [holds the 
highest commission which] is known to the American Navy." 

No. 13. p. 26, 8th line from the bottom of the text, the word 
"some" omitted before the word "resistance." 

No. 14. p. 27, 9th line, the first word " f/ie/z," not in the ori 
ginal. 

[This word had been in the original, but was erased-l 

[Note. The following variances refer to that part of the copy 
taken from the judge advocate's original minutes; and not from 
Mr. Harrison's transcript, as above stated.] 

No. 15. 2d paragraph (p. 27) *' were" instead of " being;" and 
the sentence made to end at " Hteji," instead of going on through 
the paragraph. 

[Note. This also conformable to the original state of the re- 
cord, till corrected by the judge advocate.] 

No. 16. p. 29, 18th line from the bottom, the word "«/>," not 
in the orijrinal. 

[" He (Com. P.) halted them (the seamen) some distance in the 



135 



rear of my division, and came himself [upj to the ground I occu- 
pied," &c.] 

No. 17. Page 30, 2d paragraph, " half past ten," intead of 
*'twoy 

(Note, a variance in the hour of adjournment.) 

No. 18. Page 31. The sentence, " ihe judge advocate inform- 
ed the court," &c. ('which appears in the original J before the ad- 
journment, till twelve o'clock to-morrow, omitted ; and the two 
sentences after the adjournment, not in the original. 

Tiiis variance is best explained by placing, in opposite columns, 
the passage referred to, as it appears in the fumyldet, p. 31, at 
the conclusion of the proceedings of Friday, May G, and in the 
record at p. 40 : 



C Pamphlet, p. o\.J 

" The court adjourned till twelve 
o'clock to-morrow. 

" The judge advocate informed the 
court that he should probably be in 
possession of more testimony to sub- 
mit to-morrow. 

«« The court adjourned till to-mor- 
low morning at 11 o'clock." 



(Rccxrtd, p. 40. J 

" The judge advocate informed the 
court that he should ])roba!)]y be in 
possession of more testimony to sub- 
mit to-morrow, Init h'ld none to lay tie- 
fore ffie cuitrt, al iliis turn:. 

"The court adjourned till twelve 
o'clock to-morrow." 

(Note the words in i'lttli'i:% "but 
had, &,c." had also bien omitted in 
the 7-ecord, and interlined as afore- 
said.) 

No. 19. ('Same page of the pamphlet.^ In the proceedings of 
Saturday, Ist paragraph, the original reads, "present all the 
members of the court, thejudge advocate and captain Poriery 

[Note, the presence of captain Porter, is onutted in the pam- 
phlet-copy ; had been so in the original ; and is 'one of the inter- 
lineations so often mentioned.] 

No. 20. (same page of pamphlet) 2d paragraph; the communi- 
cation from the Secretary of the Navy, marked (G) not inserted 
in the pamphlet. 

[Note. The passage in the pamphlet, referring to this commu- 
nication, does not annex the mark (G) but leaves the mark blank, 
with a reference to this note at the foot of the page, " JVot in wy 
yossessiony Nor is it now in our possession. 

This is the letter so often mentioned, as transmitting to the 
court of inquiry the "Rejected documents:" the "unimportant 
letter" mentioned in Com. Porter's letter of the 14th June (ante, 
p. 117, No. 14) as the one refused to him by thejudge advocate : 
and it is also referred to in what is said (ante, p. 12G) about the 
judge advocate's explanation of his answer by Lieut. Farra"-ut to 
commodore Porter's request to be furnished witli a copy.] 

No. 21. p. 32. The third paragraph not in the original. 

[Note, this third paragraph appears, in the pan^phlet, at the 
end of the proceedings of Saturday, May 7; just after the entry 
of the adjournment on that day ; and is as follows : 

"On Monday the court agreed upon their report, and trans- 
mitted it to the department." 



136 

This was true in fact, as appears by the proceedings of the 
Monday following, May 9 : but how it came to be inserted in the 
place where it stands, we have no data to account; and it is not 
for us to conjecture.] 

No. 22. ('Same page of the pamphlet.^ A note attached on the 
original record, at the end of the first paragraph, omitted. 

[The paragraph, to the end of which this note ought, as it is f 
said, to have been appended, is the same before-cited, fante, p.96j , 
and commented on ('ante, p. 102-7; wherein the court give their i 
reasons for rejecting the documents there mentioned : and ending : 
with the words, "the court therefore direct the judge advocate^ 
to return them, to the Navy Depiirtment, as irrelevant."* Here,; 
in the record, reference is inade to a note, at the foot of the page, 
in these words : 

♦ « It appears bv the statement of captain Porter, as well as of his clerk, 
that the letter from him. rcftrrecl to in the letter, was dated March 6, instead 1 
of May 6, bv a mistake of the clerk. 

•^ ' R. S. COXE, Judge Advocate:' 

This note had also been omitted in Mr. Harrison's transcript 
of the record : but it now appears there, as an addition, in the 
judge advocate's hand-writing, in the margin, at the foot of the 

Theletter, so misdated by ntistake, is understood to be, that 
from commodore Porter to the Secretary, before cited, ante, p. 
89, No. *2: and the letter, in which it was referred to, the one 
from the Secretary, so oftened mentioned, and in the record 
marked {Gj transmitting to the court of inquiry, the documents, 
which they rejected.] , . i , . 

No. 23. fSame page of the pamphlet.^ The 2d, 3d, 4th and atfi 
-paragraphs all i-ari/ fiom tlie original : and the report of the 
Courtis ewfjjcf^ omitted. 

[The variances, in these paragraphs, not being specified, the 
readiest way to exemplify them, is to give the last day's proceed- 
ino-s, in opposite columns, as they appear in the pamplilet and in 
the record respectively: premising that this is the part of the 
record which appears in the judge advocate's own hand-writing;' 
and not, like the precedin<r part, in Mr. Harrison's; and that it^ 
also appears from the cToss-examination of lieutenant Ritchie, 
fante, p. 5GJ that the judge advocate still retained in his pos- 
session an original minute of this day's praceedings, dilTering 
from the printed copy in one entire line ; but the line not speci- 
fied ; as remarked upon, in the preliminary examination : ('ante, 
p. 131-2; also premising that " the report of the court," said to 
he " eniirehj omitted," is accounted for by a note, put in the place 
nhere <he report should have been in the proceedings; his igno- 
rance of the report iiaviiig been also distinctly stated by commo- 
dore Porter, in his letters to the Secretary of the Navy, of the 
.SOth May and Hth June. fXnic, p. liJ, No. U, and p. IIG, 
No. 14. t 



137 



Pamphlet, p. 32. 

"MONDAY MORNING, Mat 9, 1825. 

" Ti>e court met pursuant to the 
■ adjournment of Saturday ; present all 
the members of the court, the judge 
advocate and captain I'orter. 

" Tlie judge advocate stated to the 
court that he had no further testimo- 
ny to submit to the court in reftrence 
to the subject into which it was directed 
to make an investigation, and the other 
branch of inquiry having been grant- 
ed at his suhcitation, 

" Tlie court was cleared, and pro- 
ceeded to deliberate upon the course 
to be pursued, and after some time the 
court was opened, and the judge ad- 
vocate stated that the court had de- 
termined to proceed in the business 
which had already been investigated, 
and to report to tlie department the 
facts which have hccn formed in rela- 
tion to it. 

" The record of the proceedings of 
the court having been read, the court 
was cleared for tlie purpose of delib- 
erating upon the report to be made 
to the department. 
"(The report here comes in, of which 
I have no knowledge.) 

" After the rf'port had been agreed 
to and signed, the court directed it to 
be transmitted to the department, ac 
companied with a letter, mforming 
tlie Secretary of the Navy that all the 
business tvhich was before the court is 
completed. This being done, the 
court adjourned till to-morrow morn- 
ing at 11 o'clock." 



Record. ^' 

"MONDAY, Mat 9. 

" The court met pursuant to the 
adjournment of Saturday ; present aU 
the members of the court, the judge 
advocate and captain Porter. 

" The judge advocate stated to the 
court, that he had no further testimo- 
ny to submit to the court in the in- 
vestigation,(a) and, the other branch 
of inquiry having been submitted to 
the court at his solicitation. 

" The court was cleared and pro. 
ceeded to dehberate upon the course 
to be pursued ; and, after some time, 
was opened, and the judge advocate 
stated that the court had determined 
to proceed to complete the business 
which had already been investi- 
gated, and to report to the depart- 
ment the facts which have been 
proved in relation to it. 

«<The record of the proceedings 
was then read by the judge advocate, 
and the court was cleared for the pur- 
pose of deliberating upon the report 
to be made to the department." 

piere the report of the court of 
inquiry followed. 

We omitted to take a copy when 
the document was accessible to us, of 
the closing paragraph of this day's 
proceedings. But we believe the on- 
ly differences between it, and the last 
paragraph in the opposite column, 
were in the two words there printed 
in italics ; at any rate, we venture to 
assert, with abso lute confidencej 
that the variance was not more ma- 
terial, than any other to be found ii» 
these cokimns.J 



[Note. The number, and the character of tl« variances, appa- 
rent in the short space of this day's proceedings ; and the extreme 
improbability that so many and such marked differences of p/trase 
should have escaped the very careful and elaborate examination 
and comparison, which lieutenant Ritchie proves the paper under- 

(a) At this mark there are Interlined, in pencil, the following words : « com- 
modore Porter having declined taking any part in the investigation :" which 
pencilled interhneation, though necessary to fill up the sense of the paragraph, 
does not appear to have been intended as an official amendment or correction 
of the record; because, as before observed, it is omitted in the office-copy 
fiJed in this trial. 

18 



138 

went, rather indicate that the record, as it now stands, was not 
the actual original, from which the copy was taken ;than that such 
palpable though immaterial errors, in the copy, should have been 
committed by any clerical misprision, or afterwards passed over by 
any inadvertency in the examination. The face of the papers, 
and all the concomitant circumstances lead to the presumption, 
and confirm the inference, before drawn from the coincidence of 
such numerous erasures, interlineations and additions, with such 
manifest variances between the presumed original and the copy, 
that the record, as it now stands, is a revised and amended recast 
of the record, or of the paper-minutes and entries*, forming the 
basis and materials from which a complete record was to be ex- 
tended, as the same stood when the copy was taken. For, after 
all, there is nothing affecting the gist or substance of the inquiry, 
in any one of the variances that have been pointed out ; nothing 
to justify a suspicion of any sinister motive : they go no further 
than to produce more or less of precision in the mode of express- 
ing the same meaning; or, at most, to pretermit the most imma- 
terial and trivial circumstances.] 

No. 24. The communication from the Secretary of the Navy, 
not introduced into the ori^iuarrccorrf, but annexed to the sub- 
sequent proceedings ; and the word "proposed,-^ at the end of 
the 4th paragraph, instead of *• prepared.''^ 

(^This refers to the second precept from the Secretary of the 
Navy to the president of the court of inquiry ; directing the court 
to proceed with a distinct branch of inquiry, relative to the gene- 
ral employment of the squadron, and wholly unconnected with 
the subject matter of these proceedings ; but it is printed in the 
pamphlet, immediately after the minutes or journal of proceed- 
ings, closing with Monday, May 9, as before-cited. The only 
intelligible, if not the only intended exception to the printed copy 
of this document, is the misprint of the word, " proposed,'''' for 
*' prepared,^ at the end of a paragraph, which simply informs the 
court that " such documents, as appear to be connected with the 
subject of inquiry, shall be transmitted as soon as they can be 
prepared.'''' This, on examination of the manuscript-copy, proved 
to be a typographical error ; which had crept in, notwithstanding 
the pains taken with the reading of proof-sheets ; as proved by 
Martin King, ante, p. 56.] 

No. 25. In the documents given in evidence the original re- 
cord gives 

1st. Letter from capt. Porter to Secretary of the Navy, of 
Nov. 15, 1824. 

2d. Same to same, January 1, 1825. 

Sd. Stephen Cabot to commodore Porter, November 12, 
1824. 

4th. Burgeest 8g Uhlhorn to same, November 11, 1824. 

5th. Charles Piatt to same, November 11, 1824. 

6th. Secretary of the Navy to same, February 1, 1825. 

In i\itpamphkti p. 43, &c. the papers 3, 4, 5 are transposed; 



139 



No. 6 wholly omitted, and one inserted, as No. 6, which never 
was submitted to the court in that investigation. 

[From the description already given, ot the miscellaneous com- 
position of this pamphlet, (ante, p. 121-2) it appears to have 
been, by no means, the plan of the author to confine himself to A 
copy of the proceedings of the court of inquiry, or of the docu- 
ments that had been considered by that court : but such of these 
proceedings and documents as were in his possession, were to be 
used, merely as part of the materials of his justification. This 
necessarily resulted from the circumstances which had, as he. said, 
driven him from the presence of the court: that is to say, had 
obliged him to decline entering upon any defence, or taking any 
paia in the proceedings, which he could not do under the restric- 
tions imposed on him, without degradation. Accordingly, it has 
been seen that two thirds of the pamphlet consisted ot matter 
tliat formed no part of the record of that court. At the end of the 
twenty pages of the minutes or journal ofproceedings closing with 
those of the last day above cited in explanation ot variance No, 
23, con\es the second precept, instituting a distinct branch of in- 
quiry, which, as remarked in the note of variance No. 24, had no- 
thin^ to do with those proceedings. Then follow a number of 
pape^rs (marked from B to F) that do belong to them : ('aj and to 
these succeed a number of other miscellaneous papers, headed 
•' documents ;" the first five of which are the same above cited, as 
.riven in the original record, from No. 1 to 5, but transposed, as it 
?s said; that is. tlie order in which they were placed in the original 
record being disregarded, and, evidently, not professed to be re- 
garded : to these five, follow four others, not belonging to the pro- 
ceedino-s; then one (the affidavit of Lieut. Bartonj that does be- 
Ion- to^them ; then one (the act of Congress to protect the coio- 
meixe of the United States, &c.; that does not : then the defence 
and a voluminous mass of documents, occupying between 50 and 
GO pajies ; all adscititious matter, with one exception. 

Thp paper marked No. 6, in the record, and here said to be 
u'hoUa omitted in the pamphlet, is the often cited letter of in- 
structions oi the 1st of February, 1823, the supposed disobedience 
of which lay at the foundation of the whole inquiry then ppndr 
in- formed the gist of the justification, which the pamphlet waj 
wntten to establish ; and of the first charge now under trial : and 
the total omission of which would, indeed, have been a porten- 
tous error. The fact, however, is, that a literal extract of it li 

r« ; Note. The paper A, (being the original precept for convening the 
comt^ and under the authority of which the whole mqu.iy had been con- 
ducted) "s also /ra..s7>..«/ ; for instead of being connected ^'^h this senes of 
documents, as in ti^e original record, it is placed some 20 or oO pages before 

em w th a scries of conespondence not belonging to the proceeings of 
t e^;urt,and inserted in the pamphlet between the »^vert.sement and the 
nTnuteTor journal of proceedings. Indeed the numhcv f iraru.fosiiam i^ 
eTemely underrated (as will be obvious in a variety of «thtt imtanec-) 
when it is Umitcd to "the papers 3, 4, 5." 



140 

given in the pamphlet (p. 68-70J comprising every part of it that 
bore any relation to the then pending subject of inquiry and in- 
vestigation ; and leaving out the three last paragraphs, commenc- 
ing with " great complaints are made of the interruption to our 
commerce by privateers," &c. which paragraphs ("as may be seen 
on a reference to them, ante, p. 76, No. l^ related to i^ubjects al- 
together foreign to the matter of inquiry and justification then in 
hand: and, therefore, it is presumed, were omitted. 

The fact is, so far from there appearing any motive or design to 
suppress it, that this letter of instructions is introduced into the de- 
fence contained in the pamphlet, as in fli(/ of the general princi- 
ples deduced from public law, precedent and usage, to justify the 
operation at Foxardo. Then the alleged variance is expressed 
with extreme inaccuracy, when it bears that this document was 
''wholly omitted i^^ at most it should have been arranged among 
the transposed documents; or its diminution, in respect of the 
omitted paragraphs, suggested. 

As to the paper said to be inserted, as No. G, and as not being 
one submitted to the court in that investigation, it is nothing 
more or less than the often cited letter of recal, of December 
27, 1824 ; which vid. ante, p. 78, No. 3. The bearing of (hat do- 
cument upon the matter then and now in hand, needs no illustra- 
tion. Why the insertion of this document should have been se- 
lected for animadversion, as one that had not been submitted to 
the court, when it is associated with so numemus a mass of others, 
in the same predicament, is not explained by any data in our 
possession.] 

No. £6. p. 34. Fifth line from the bottom, " wtre^ instead of 
** iras." 

[This, upon reference to the passage, appears to be a mere dif- 
ference of grammatical propriety, between the expressions, 
" whether a thing was done," and " whether it were done."] 

No. 27. p. 36. Commencement of sixth paragraph, the words, 
" 1 beg leave to state further that," omitted. 

[This variance occurs in one of commodore Porter's addresses 
to the court of inquiry, in support of his objections to the forma- 
tion of the court, or the scope of the inquiry: and consists in the 
diSerence between the following modes of expression: " it was 
not my intention to make, under any circumstances whatever, 
objections to any member," &c. and, " 1 beg leave to state fur- 
ther that it was not my intention to make," &c.] 

No. 28. Same paragraph 3d line, after, " cowrf," the original 
reads, " and I should now waive all objections," &c. 

[The printed copy reads, "and even now 1 should waive all 
objections," &.c.] 

No. 29. Same paragraph, 3d line from bottom the word, ''as'''* 
not in the record. 

[Speaking of the terms of the investigation, "as asked for by 
me ;" distinguished from those laid down in the precept.] 

No. 30. p. 37. 3d line of 2d paragraph, " the rfesig-H," instead 
of ^'designed.-' 



141 

[" It was eviilontly designed [the design] that,'- &c.l 

No. 31. 9th and 8ih lines from the bottom of paper B, •'consid- 
ering the tearful odds 1 have to contend against," itulicised in 
original. 

No. S2. p. 41, 3d and 4th lines of 3d paragraph, •• to any sub- 
ject," instead of " to the subjects." 

[Commodore Porter, in addressing tlie court on the subject of 
his said objections, speaks of not having made any request, in a 
letter of a particular date, " relating to any subject [the subjects] 
submitted to you."] 

No. 33. p. 42. 11th line of 2d paragraph, " a power," instead 
of " its power." 

[Speaking of the riglit of the court to decide, a particular point, 
he says, " I cannot acquiesce either in a [its] power to decide," 
&c.] 

No. 34. [When these variances, and the documents connected 
with them, were under examination, before the c(turt, one was ob- 
served and noted, which is not mentioned in the judge advocate's 
note of such variances ; and which is now gratuitously added to 
the list.] 

In the proceedings of Saturday, May, 7, (^Pamphlet, p. 31, 
above-cited in variance No. 20.^ Lieutenant Barton's aftidavit is 
referred to, as marked H; but in the record the original mark is eras- 
ed, and the figure('7j substituted; which Mr. Harrison believes (ante 
p. 63,_^ to have been also by the hand of the judge advocate. This 
erasure, being with a knife, does not leave the original mark so 
legible as the others; but from the general outline, and some faint 
traces, was concluded to have been an H. The same erasure and 
alteration of the mark appear on the back of the docua}ent itself, 
annexed to the record. 



THE ETIDY.XCEi 

UNDER THE FOURTH SPECIFICATION. 

Si'EciFicATioN 4. Inserting, in the said pamphlet, "various re- 
marks, statements and insinuations, not warranted by the facts, 
highly disrespectful to the Secretary of the Navy, and to the said 
court of inquiry." 

The pamphlet, which is the single document to which this spe- 
cification refers, was simply read, in the course of the trial, from 
beginning to end, by the judge advocate; without other explana- 
tion, or indication whatever, how it applied, or what passages of it 
were to be selected, as applying to any charge or specification : 
except the thirty-three variances, enumerated under the third 
specification as above -stated. The accused, therefore, had to look 
through the whole document, and to infer, by anticipation, what 



were the passages excepted tp. In making out this report, we 
should have been left in the same uncertainty, but for the pub- 
lication of the final sentence of the ctturt-niartial, in this case; 
which does point out the particular passages, intended to be : 
brought under this specification : and to these the explanatory 
passau,es of the context, or other evidence, to be stated under this i 
specification, are to be directed. 

For the general desciiption and scope of the pamphlet, vide; 
evidence under the 5d specilication, ante, p. 119 — 24; particu- 
larly the " advertisement," p. 121. 

Reference is there made to certain preliminary exceptions tak- ■ 
en by cuiuinodore Porter to tl\e formation of the court, and to the '. 
scope of the inquiry submitted to it; which eventuated in an or- ■ 
dcr, expressive of strong disapprobation of certain pass,'i<;es in i 
tlie commodore's conununicatioiis in support of these excepiions; ; 
and imposing certain i estnctions on his future rcmmunications; ; 
which had caised him to take his lea->e, and decline any furthep ■ 
participation in the business : conceiving that he should be de- • 
gradetl by conforming to restrictions, which he thougiit deroga- 
tory to him, in themselves; and more especially from the de^ 
clarcd moti\e for imposing them. 

At t!j(i meeting of tlie court of inquiry, on the 2d May, before 
the members were sworn, commodore Porter stated a preliminary 
exception to the formation of the court, and to the terms of iha 
precept, by which the scope of the proposed inquiry was defined, 
For the terms of this exception, and tiie veisioiis, given of it by 
the commodore and by tlie judge advocate, see variance No. 3, , 
ante, p. 132. 

On t!ie same day, after the members were sworn in, he deliver- 
pd a written memoiial, addressed to tlie court: ('the same above- 
cited as marked B, in variances Nos. '■27, 28, 29, 30, 31,) in which > 
he unfolded, at s(Mne length, the grounds of his exception, and the 
reasons in support of it. 

The precept had indicated two disti'ict subjects of inquiry;; 
the first, at the instance of the government, and limited to the; 
attair of Fo.vardo : tlie secund, as at the request of the commo- 
dore liimself, and directed to •' certain represeittntiovs made to 
the government, in regard to the employment of the naval forces t 
of the United States in the West-Indies and Gulf of Mexico, 
setting forth, in substance, that, in the year 1824, the said naval 
forces were not employed in the suppression of piracy, in the 
mO!^t effective manner, but were employed in the tran>^portation 
of specie, and in other objects of inferior moment, to the neglect 
of the public interests." , 

As to the first branch of inquiry, it was remarked, that as it 
proceeded upon a charge, preferred by the Secretary of the Na- 
vy, he had •' a perfect right to couch it in whatever language 1 
may appear to him most proper to obtain the end he has in view." | 

But, as to the second branch of investigation, which the pre- 
cept professes and avows to have been instituted solely at com- 
modore Porter's request, he insists that it should have pursued 
the terms of that request. If it materially varied from such terms, 



143 

it could not properly be called an investigation at his rvgufst ; 
but one equally moved by the governrnent, as that concerning the 
aftair of Foxavdo. He refers to his letter, March 2, (^ante, p. IIU, 
No. 4,j as containing the only request which he had ever made 
on the subject ; and as necessarily constituting the request, re- 
ferred to, in the precept. He objects ilujt the particular docu" 
nients referred to (io wit, the letters of Messrs. Randall & Moun- 
tain ccmimunicated, tliruugh the State Department, to Congress, 
and specified in his letter of the 2d March) as constituting the 
injurious charges, which he requested to have investigated, should 
have been specified in the precept ; and that the court should 
have been directed to inquire intct the truth of tl^ese s[)ecific 
charges, and " how far facts will justify tJieir ('Messrs. Randall 
& Mountain's^ statements and retnarks, and the iajurions remarks 
they have elicited on the floor of Con^-ress^ He also objects 
that, though the facts, charged in those letters, were highly dis- 
reputable, if true, to all concerned ; as well to the officers under 
his command, as to himself; and though his request for an inqui- 
ry had expressly extended to them; vviio«e justification was as 
necessary as his own; yet that branch of the requested inquiry 
was omitted in the precept: that as a part of the squadron had 
actually been employed, under the orders of the Secretary, "in 
the transportation of specie, and (perhapsj in other objects of in- 
ferior moment;" that is, of inferior moment to the great object of 
the suppression of piracy; the terms of an inquiry, so limited, 
might involve a question of the propriety or expediency of such 
-orders : at all events, it did not reach the specific end and object 
of tV'i 'ix\(\mvy requested by him; as it professed to do : which was 
to investigate the conduct, both of himself and Ids oflicers, in re- 
lation to the particular charges contained in Messrs. Randall & 
Mountain's letters ; and, upon their authority, promulgated on 
the floor of Congress. " Messrs. R. & M. (he saysj are uiider- 
Stood to have said that myself and others under my command, 
have neglected the duties which were confided to us, to the dis- 
credit of the navy and the nation ; to the injury of the property, 
and to the sacrifice of the lives of the citizens of the United 
States, for the sole purpose of benefitting ourselves by the trans-, 
portation of specie:-^ and he argues that the precept should, in 
terms, precise or equivalent, have directed the inquiry totliis spe- 
cific charge. 

He then proceeds to expound his objection to what he had 
termed " the materials of which the court was composed:" and 
which he had explained to be "no specific objection to indfuu/u- 
ft/s." The point, on which this objection turns, if, that the court 
was composed of officers, the majority of whom were his juniors 
in rank. He disavows being actuated, in taking this objection, 
by any motive personal, either to himself, or to the members of 
the court: but reasons it as one of great importance and general 
interest to the service ; and which he did not feel himself at liber- 
ty to waive, as others, besides himself, might be implicated in the 
result of the inquiry. 

The eourt directed the Judge advocate to refer these objections, 



144 

with the memorial in support of them, to the Secretary of the 
Navy : which was done io a letter from the judge advocate, to the 
Secretary, drawn up, under the instruction of the court :(u) in 
which, after introducing the subject and referring to the memo- 
rial, the judge advocate, in behalf of the court, proceeds to say: 
" You will perceive that an exception is taken to the court it- 
self, as not composed of competent members. This (»bjection ap- 
ftlies to a majority of the court, and they consequently feel a rfe- 
icaci/ in determining a question involving their own competency. 
The court, therefore, has deemed it correct to submit the (]ues- 
tions tiius raised to your determination, and to adjourn the court 
for the purpose of obtainingyour opinion before proceeding in the 
investigation." 

The Secretary's answerffij was communicated to the court, 
the next day, May 3; in which, it is remarked, that if captain 
Porter intended a challenge, or a specilic legal exception to any 
member, the proper tribunal for its decision v/as the court itself; 
the proper time was before tlie members were sworn. If, as is 
presumed, he designed to complain of the manner in which the 
court was composed, as unjust or illegal, he ought, before the 
meeting of the court, to have applied to the department ; which 
alone possessed the power of affording a remedy: having had 
timely notice of the composition of the court, and of the desig- 
nated objects of inquiry, from a copy of the precept, as early as 
the 20th April. As to the legality of constituting the court, with 
three captains, of the same rank with captain Porter, one senior 
and two junior to himself, the opinion of the department was ne- 
cessarily expressed in the very act, which created and convened 
the court : and no argument was discovered, in the paper submit- 
ted, to change that opinion. 

As to the objection to tlie terms of the precept, by which the i 
scope of the objects of inquiry were prescribed, the reason and 
design of addressing, to the court, any comment upon it, was not 
perceived: as the court was not supposed to possess the power i 
to decide either on the form of the precept, or on the proper objects 
of investigation : but such objection and comments should have 
been addressed to the department, which alone possessed the power 
to alter the form of the precept, and to change the scope of the 
investigation. 

The President of the United States having thought proper tT>' 
order an investigation of the transactions at Foxardo, it was the ■. 
duty of tlie department so to frame the precept as to meet that ! 
object: which was thought to have been done with sufficient pre- 
cision. 

As to the other branch of the inquiry, it had been granted at i 
his (Com. P's) request ; " and was intended to be so general as to 
permit him the utmost latitude in proving what had been his con- 
duct on any particular point which he might select; and shewing ; 
that he was free from all just cause of accusation, by whomsoever 

(al TIlis letter is found in the record and in the pamphlet^ marked C. 
lb) Marked D. 



^ 145 

Miadf, If the words be not sufficiently broad to permit such an 

t investigation, they would heretofore have been promptly extended, 

at his request, and no difficulty will now be made, should he re- 

I quest it, in so directing the court as to accomplish his object. The 

defect on this point, if one exist, is not perceived. It was not 

' the intention of the department, at the suggestion or solicitation 

, of Captain Porter, to direct the court to inquire into the conduct 

, of otiier officers, of whose actions the department saw no cause 

to complain ; wiio had not asked for any inquiry ; and for whom, 

it was not perceived, that he had any authority to demand it. 

^, Much less was it the intention of the department, on an inquiry 

asked by him, to submit to the court the legality or the propriety 

of the orders given to him. Nor is it believed that the precept 

can bear any such construction. With this view of the matters 

, contained in the papers submitted, the department has only to di- 

i rect, that the court, constituted as it is, proceed to make the in- 

j quiry directed by the precept." 

1 This communication being read in open court, annexed to the 

j record and marked D, the court proceeded to examine I/ieut. 

j Piatt; at the conclusion of whose examination, tlie next day, 

: Com. P. was asked whether he had any questions to propose, " to 

which he replied (as the record states) that, before proceeding 

to any steps in his defence, he had some remarks to submit to the 

court, which he read and submitted to the court; the paper was 

annexed to the record, and marked E." 

The paper thus incorporated as a part of the record of the court 
of inquiry, and referred to as such by its proper mark, in the 
pamphlet-copy of the proceedings, is found in the pamphlet, p. 
40. as follows : 

E. 

Gentlemen- of the Court: Before proceeding to the exami- 
nation of anj' witness in my defence, I must beg leave to enter 
my protest a^jainst the decision of the Secretary of the Navy, as 
regarils the legality of the formation of the court. A question 
of law and justice, on which the court, either from incompetencij 
or delicacy, are unwilling to come to a decision, should not be de- 
cided on by the officer with whom the illegality and injustice 
complained of is supposed to have originated. A question of the 
importance of the one submitted to vou, i was impressed with a 
belief at the time of presenting it, would be, and am still of the 
opinion should be, submitted to the Attorney General of the 
United States, if the court from any cause wa^ umvilling to take 
the resiion>ibility on itself. And in order that I may not be 
supposed to have given my assent to any circumstance which by 
any tribunal liereafter may be supposed to vitiate the legality of 
your proceedings, I must beg leave to decline taking any part 
whatever in this investigation, until the (juestion I have submitted 
to you is dr« ided on by competent authority. A question, not 
ori;>;inattng in any captious disposition on my part to create dif- 
ficulties, as it would appear from the quotations in the 8ecreta- 
19 



146 

rj's letter, is supposed to be the case, but from a sincere uesire 
that every proceeding in the case should be conducted according 
to the strictest principles of law and justice. 

If an error, as is intimated, was committed in point of form, in 
the time taken to state my objection, the court will no doubt re- 
collect that the error did not originate with me. — I apprized the 
members assembled before its formation, of my intention, and 
adopted the time suggested to me by the judge advocate. lint 
even if an error had been committed by me, ir.erely in point of 
form, is it just, considering all circumstances, that the j^ttrtu op- 
posed to me should avail itself of this error to my disadvantage, 
when no intimation whatever of the error was made to me at any 
time, either by the court or its law adviser? That I did not apply 
to the department before the meeting of the court, to remedy the 
evil complained of, scarcely needs an explanation — if it docs^, yon 
have it nou\ in the decision of the Secretary. 

1 feel it due to myself in making this protest, to place on the 
record my reply to the intimation that the precept would have 
been changed on my application bef<)re the meetingof the court. 
You have already been made acquainted with the language used 
in my application for the investigation s^ought for by me ; it is 
therefore unnecessary to repeat it. — The Secietarv, in what pur- 
ports to be his reply, dated on the 16th March, states as follows: 

"It has become my duty to apprize you of the determination 
of the Executive, that a court of inquiry will be formed, as soon 
as circumstances will permit, to examine into the occurrence al 
Foxardo, which was the occasion of your recal, and also to con) 
ply with the request contained in your letter of the 8th inst." 

I must observe that I understood the Secretary to mean, by the 
letter of the 8th, my letter of the i2d, a? I never made any re 
quest of him in any letter of tiiat date, relating to any subject 
submitted to you. Confiding in the assurance of his reply, 1 "was 
greatly surprised at tl>e wording of the precept, and I must leave 
you to decide, whether, after it had been issued, the court wa- 
not the proper medium throuoli which I was bound to comu)Uiii 
cate with the Secretary. I will further remark that, in the lettei 
accompanying the precept, the Secretary, from some objections to 
the style of my letter, thought proper to remind me of the relu 
tion w^hich subsists between me and the department; and not 
willing that oftence should in future be taken when none was in- 
tended, or to incur a similar reproof, when none was deserved, 1 
thought it safest on my own account, that all my communications 
should, in future, be made to you, and through you. 

[The woids in italics were those underscored by the court of 
inquiry; to indicate, as it was understood, what passages were 
excepted to as disrespectful.] 

Upon the reading of this paper the following proceeding wasj 
had concerning the same ; according to the official record of tht 
court ot inquiry. 

" The room was then cleared, r.nd after some time was opened] 
vhen the judge advocate informed Capt. Porter that the court hatf 
maturely deliberated upon the paper submitted by him— that aftel 



147 



full consideration, the court is of opinion that the matter of the 
communication, as well as the language m which it is couched, is 
in several particulars so highly objectionable that, could the court 
have anticipated its character and contents, it would nothave been 
suffered to be read.— The court consider it as highly disrespecttul, 
both to the Secretary of the Navy, and to the court itself. 1 his 
court cannot submit to hear from any officer animadversions on 
the fonduct, and accusations against the head ot the department, 
whollv foreign to the investigation in which it is engaged ; nor 
can it; without forfeiting its own self respect, listen to language 
so offensive to itself. The court is willing to believe that this 
objectionable character may be attributed to the hasty manner m 
wlHcli the paper appears to have been drawn up ; and that Laptain 
Porter, on consideration, will himself feel disposed as well to 
perceive, as to rectify the grounds of objection. 

In order, however', to prevent a recurrence of such unpleasant 
circun.stances.the court has ordered, that in future no communi- 
cation be received unless in writing, and the paper must previous- 
ly be submitted to the judge advocate for the consideration of the 



The iud<re advocate further informed Captain Porter that the 
court had likewise directed him to state, that when the question 
v/a* asked him, on the opening of the court, whether he had any 
objections to make to any member of the court, he was understood 
t„ say, distinctly, that he had none : but that he wished to submit 
to the court "some remarks on the precept by which the court 
^vas convened, and the materials of which .t was constituted. 
It was t!u.n suggested to him that, as the court had not yet been 
organized, it could at that time hear nothing from him ; but that 
the proper period would be after the members had been sworn in. 
This suggestion was made by the judge advocate, and apparently 
armiiesced in by Capt. Porter. . 

Immediately after the organization of the court. Captain Porter 
read and sub.nltted to the court the paper which has been annexed 
to. and constitutes part of the record. Conceiving that it con- 
tained, not a challenge to the court, or a specific exception to any 
member of the court, but objections applying exclusively to the 
nrecept under which it had been convened ; and that these objec- 
tions if P'-esented to tlie government, might possibly induce some 
chan'^e in the precept, with which the court had no authority to 
i„terTere;-feeling, also, that the exceptions which had been 
ur..ed, involved the competency of the major part of the members 
oflheC.urt, a question on which delicacy forbade them to express 
an opinion, when it had not been presented distinctly to their de- 
cision; the court determined to pursue the course which was 
adonted and of which Captain Porter was immediately apprized. 
If however, Captain Porter did design to raise a question for 
the decision of the court, as to the legality of the precept, under 
which it is acting, the court has no besitat.on in saying that it 
ente tains no doubt upon the subject. Had any doubt existed, 
the court would have put it in a way to be satisfactorily decided, 
before proceeding to act wnder it. 



148 

The court is aware that it possesses no power to compel Capt. 
Porter to take any part in this investigation ; but it is equally sa- 
tisfied that his acts can in no degree interfere with the duty of 
the court to proceed in the investigation, which it has been charg- 
ed to make by the competent autfiority. 

The court then adjourned till ten o'clock to-morrow morning." 

On the next day the correction of the terms of Com. P's ob- 
jection, as entered on the first day of the court, was received, as 
above cited in variance No. 3. ante, p. 132-3. 

Com. Porter then delivered a written address to the court, as 
follows : 

F. 

Washington, May 5th, 1825. 

Gentle>|i:n of the Court: Having carefully perused the pa- 
per commented on by the court, on account of which it has thoujiht 
proper to pass censure, and not being able to detect in it a single 
expression which bears the construction the court has thought pro- 
per to place on it, I cannot consent, by any alteration on my part, 
to admit, that by it any disrespect was intended by me, either to 
the court, or the head of the Navy Departuient fand it is the 
cause of great surprise to me that the court should have enter- 
tained such an opinion. 

The court having thought proper to underscore as disrespectful, 
the word incumpeti'uci/, as used by me in relation to it, 1 beg to 
state distinctly, that the word was not used in rcijard to intellec- 
tual incompetency, and in no other sense could it be oftensive; 
butwith respect to its legal incompetency, fin the opposite sense 
in which the court itself applied the word competency^ which 
was supposed to be admitted when the subject was referred to the 
Secretary for his decision. Delicacy I di«i not conceive to be 
the only motive for the course taken by the court, as I did not 
Jjelieve it a suflicient and satisfactory one; being under the im- 
pression that it was the dut^y of every officer to |°erf(a-m the ser- 
vice confided to him, however delicate, provided it be legal. 

The declining to make a -decision on my first application, and 
referring the subject t(. the Secretary of the Navy, was, as I sup- 
posed, an admission of the iiicon\petency of the'court to decide, 

or a voluntary relinquishment of its right, if it possessed it, a 

right which 1 ;un of opinion the court cannot again lesume, after 
the opinion of the .Secretary is at its request made known. If 
the court had the right to decide in the first instance, no delicacy 
should have prevented its decision; but, relinquishing its right, 
1 am under the impression it cannot resume it to decide now as 
to its legality, and I cannot acquiesce cither in its power to decide 
the propriety of the decision it has come to, or the rule it has es- 
tablished with regard to the course it has thought proper to adopt 
toward me. If I am not permitted to appear before the court on 
terms of perfect equality with my accusers, whoever they be, and 
to defend myself in the way which may appear to me the most 
proper, ('always observing due respect to the court and tiie Se- 



149 

cielaryj I must in justice to myself decline oft'ering any defence 
wliich may be liable to be weakened by an interposition on the 
part of this or of any other tribuJial. 

With this remark, I beg leave to adhere to the determination 
expressed in the paper on which the court has aniiiiadverted with 
so much, and I think, with such undeserved severity. 

I have the honour to return to the court a copy of the paper 
commented on, underscored, and marked by it as objectionable; 
together with a copy as it was submitted by me to the court. 

I have the honor to be, with sentiments of the highest respect, 
the court's very obedient servant, 

D. PORTER. 

To tlie President and Members 

of the Court of Inquiry now in session. 

This paper being read, the c(»urt deliberated, some time, con- 
cerning it: and upon the opening of the court, the following pro- 
ceeding was had : 

" The judge advocate informed captain Porter that he was in- 
structed by the court to say that the paper had been maturely 
considered* — that it is deemed objectionable from the style of ani- 
madversion upon what has transpired, and of instruction as to 
the future conduct of the court. The court, therefore, will per- 
mit captain Porter to withdraw it. Should he, however, wish it 
to be inserted on tlie record in its present shape, it shall be done, 
accompanied by such remarks as the court conceives it due to 
themselves to make. 

"Captain Porter declined to withdraw the paper; it was ac- 
coidini^ly annexed to the record and marked F, and the judge ad- 
vocate informed liim as follows: 

, "The court feels constrained to make some remarks upon the 
animadversions which captain Porter has thought himself entitled 
to pass upon its conduct. The court did understand captain Por- 
ter to wui\e or decline challenging any of the members of the 
court, but at the same time to intimate, as an objection which he 
conceived existed against the organization of the court, that two 
of the members were his juniors in rank. The court did not, at 
any time, suppose (hat this objection had any foundation, either 
in the letter or spirit of the law. The law is silent on the sub- 
ject. T!ie (inly qualiiication required is, that the members of the 
court slionid be commissioned oflicers. The "materials then 
of which this court is constituted," are conceived to be wholly 
free from any ley:al objection. Nor is there any thing in the spi- 
rit of 'he law which the court has been able to perceive leading 
to a different conclusion. Kvery member of this cnurt holds the 
same commission with captain Porter; all arc captains: one his 
Sf ni(»r. two his juniors, in d;ite of comu»is>iion. The court, how- 
ever, is clearlvand unhesitatingly of opinion that no law would 
be violated, either in its letter or spirit, by the appointnjent of 
any three commissioned officers to constitute a court of inquiry 
into the conduct of any officer. Courtesy, and a regard to the 
feelings of the officer whose actions are to be investigated, wilj. 



150 

it is prosumeil, in all cases, prevent the government from select- 
ing officers of a very inferior grade to set npon an inquiry into 
the conduct of an officer of elevated rank. But this principle 
can scarcely be carried to an extent which would apply to a court, 
every individual of which holds the highest commission whicli is ■ 
known to the American Navy. At all events, this is an objec- 
tion which the court conceived, and still conceive, can be proper- 
ly decided only by the executive. This court can in no manner 
interfere with such a question. In this instance likewise, it ap; 
peared to the court to be so connected with other comments uponi 
the precept as to present itself before the court rather as an ani- • 
inadversion upon the conduct of the executive, in thus organizing; 
the court, than as a challenge formally presenting the question for 
its decicion. Captain Porter seems himself to have so viewed it, , 
fitr he assigns his reasons for making this court the organ of his' 
comiiuinications witli the department. 

"The court thinks proper, further to remark, that the single 
object tor which it has been constituted is, to inquire into the ot- 
fitial conduct of captain Porter, and to report to the department 
the facts which may be proved. The court possesses no power 
to adjudge captain Porter innocent or guilty ; it has no authority 
to impose punishment. The duties imposed are enjoined by thu 
competent authority. The interference (d' captain Porter in pur- 
suing this investigation, however desiiable it may be, as calculat- 
ed more fully to elicit the truth, is in no manner necessary. The 
court is competent of itself to perform the duties imposed upon 
it, and will now proceed to execute that task. 

Capt;un Porter was then asked wlietiier he had any question? 
to propose to lieutenant Piatt : he declined putting any, and ob- 
served he should now take his leave of the court." 

To this part of the proceeding as published in the pamphlet, 
commodore Porter annexes, in a note at p. 24, 2.3 and 2G of tlie 
pamphlet, the following : 

" Kf.mahk. Howerer desirable it migfif have been to myself and others that tJu 
investigation asked fur by inc should proceed ,- however honorable the re.^ult might 
be to niyaelf and the officers under my conmntnd, and Itoicever necessary it may be 
for the reputation of the navy and tne nation, I could 7iot conaent to dtfend myself < 
before thecouii against any charge whatever, until its legality had been decided by 
competent authority — until I could appear] before it on terms tf perfect equality 
with my accusers — until I could be allowed to protect myself in the way which 
might appear to me most proper ,■ without subm'tting my defence to the inspection 
vf the Judge advoc(de, who had no right to decide in my ca.te ,- or to the controul of ■ 
the coititt, who would thereby have e,rcrciscd a puwer nut founded on law or Justice (f 
and without the risk if ujidetxrved reproof. 

" For the incmbcrs wlio composed the court, iiKlividually, no one could 
liave aliig-hcr respect tli;in myself, und if u majority senior to me could not' 
be huvl without injury to tlie service, 1 should have been content. But this 
has not been inuile apparent, and I owed it to tlie service us well as m\ self, 
tliat no doubt should remain as to the lej>ality of the principle that the court 
^vould have estublished, that con. missioned oflicers of any class, are a suffici- 
cni court for the trial of any ofRccr, tlieir rank depending' on courtesy alone. 
The framcrs of laws rarely permit justice to dopeiul on courtesy, and I doubt 
the exception in this case. Too much courtesy mig'lit permit the guilty to 
escape j too Utile, the ii\nucent to suffer. Justice dispensed on this principle 



151 

is i.ever certain, and seltlom satisfactory. In this Instancf, I rruiy with pro- 
priety, considering all circumstances, complain that courtesy lias not been suf- 
ficiently extended; a practical illustration of tlie effects of wliich I have had, 
in the censure the court thought itself justifiable in passinj^ on me. but in- 
dependent of my objections as stated above, on tiie ground of legality, equali- 
ty, and tlie rules of tiie court, 1 object to llie precept itself, wiiich doe^ nut 
grant me wiiat 1 asked. If the Secretary of the Navy had thought my re- 
quest an improper one, he should have refused it; but after he had inforn:i- 
ed me, he would comply uith it, he shoidd have granted it to its full extent. 

" 'I'he same principle that induced me to go to Foxardo tor the protection 
of the persons of the officers under my command, induced me to ask for an 
jn<iuir>', to enable me to protect their characters. They acted in both ca.scs 
in conformity with my orders, and were entitled to my protection, so far as I 
could protect them. If in botli cases i have failed in my object, I have the 
satisfaction of knowing that ihe failure is not attributable to any omission on 
my part. 

" If the court pursues the investigation, I feel no apprehension for the re- 
sult, whether I defend myself or not ; and if tlie case .should be dismissed by 
tiie department in consequence of my refusal, it will be a snfficient justifica- 
tion of my conduct against tlie imputation of Messrs. Handidl and Mountain, 
and of members on the door of Congress, but it will be no acquittul of tlie 
officers under my command, airainst whom similar charges by ilie same pci 
sons have been made. 

" But however desirable a decision in the case may be, I cannot, either on 
my own account, or on account of others, purchase "lie good report of the 
court at the expense of self respect and esteem. 

"I take this occasi<m to express my surprise that the couif. should have 
conceived tlie idea, that I wished to submit the question of its competency to 
the Secretary of the Navy, as no such wish is expressed by me. 

" I wished my objections to the precept submitted to the Secretary, and ^(■ 
expressed myself; the question of coinpeiency, I submitted to the court itse't 
I beg leave to refer the reader to paper B, wlierein he will find I express \n\ 
self as follows .- 

" That the court is formed agreeable to tlie letter of the law, I cannot denj . 
nor could I were it formed of any of the subordinate classes I have mentioned 
But whetlier it is formed according to its spirit and intention, and on princ'pU" 
of strict justice, is the question 1 beg leave to submit to you." 

'• If the court, from any scruples whatever, declined deciding the qviesticn 
thus presented to it, it appears to me, the most proper course would have 
been to submit it to the decision of the attorney-genend of the United Stutes. 
But it was the duty of the court to decide xohether it uhus or ictus not competent ; 
ike decision </.s to its belief on the tnifjject, on oath, was all that luas required bi/ me^ ' 
and the question could have been decided by the court, as reuddy, and as well, be- 
fore, as it was, after the instructions of the Seaetary had been rectived ,- that it 
did not dtdd£ in the first instance, is sufficient evidence thui doubts then exlsttd as 
to its kgalify. 

" TJie single object for wh'ch it (the covirt) lias been constituted," has no- 
thing to do with the merits of the question of legality ; and although the li- 
mitation of its powers, as defined in the precept, might have been of itself" 
a sufficient reason for my not defending mjself before it, it is not a sufficient 
apology fur the course it has pursued toward me. 'Use court was not uutho- 
lized to offer an opinion in the case; the opinion of the president, to who<.n 
the subject is to be submitted, cannot be form^id without having all the facts 
before liim ; and his opinion 1 feel confident will not be governed by any act 
of the court. 

> " Under all circumstances their, I had rioth -ng to h,sc, or apprehend, by my 

withdrawal from tlve court, and I certainly .v.- vcd a very useless sucrijice of iriy 

feelings, as ('except tn its deportmcit i.j(ca,d jue while btfyie It, J it could do rut 

' veithcr good or harm. A court more powerless, and yei more calculatal to alarm 

the accused, was perhaps nei'cr formed. 

" The charge, first to be investigated, was exhibited against me by the Si-rrc- 
iary of tlie .Nary; tlic ISecretary of the Navy sclecied my judges, two of whom 



152 

wcrejuniffr to mc. The Judge advocate, id'o if the prlmmn mobik of all mili 
tarij courts, received/iia appuintnicnt from Ihe Secretary, and i.s his warm friend 
and protege. Under these circumstances, it may readily be imagined, 1 tiud erenj / 
thing to apprehend, and nothing to hope for, while before the court ,■ and to dtfcna I 
myself under the conditions impoaed on me, would have been worse than useless. •. 
All that was left for mc was lo retire fr(«n the court, and to luy a statement t 
of the case before the highest tribunal cu e^rth. In doing' so I mean no div, 
respect to the g-overnment, to the head of the department to which i belongs •, 
or to the court; I merely exercise a rlg-ht which is secured to every American' i> 
citizen ; a rij;-ht which I do not conceive that 1 i'orfeited when I became a pub- 
lic servant. 

« 1 feet that 1 luive been oppressed, and the privilege of complaining is not ' 
denied to the meanest slave. U- i'- 

Tt appears, since the trial, in a way, by and by, to be explaineii, , 
tliat an iiDitance of defect of accuracy in point of fact, anxmiit- 
in"- either to wilful misreprese'italion, or to criminal neglijietice 
of accuracy, or to some other lie^reeor shade of false staleaient, , 
was sujigested to, or by the court-martial, in support of that ' 
clause of this specification, which speaks of " various remarks, 
statements and insinuations, not ivari anted by the fact:; ;■■ in ad- 
dition to their other imputed character ot being disiespfctfal. 
This suji^estion is fiderstood to be distinctly asserted, as hav- 
snj^ been utterly iinknown to, and never the most distantly sur- 
mised bv the accused or his counsel, during the trial: but it makes 
an additioriol statomeiic of the evidence necessary ; not other- 
wise deemed material. 

This imputed dc\iati(m from fact is supposed to be couched, 
in a certain notefpaiuphht, p. ol,^ upon that part of the proceed- 
ings of the court of inquiry, oi. .Saturday. May 7, in \\ iiich the 
reasons of the court are given for rcjectinj;- certain documents, 
as stated, ante, p. 96; and explained, ante, p. 102-r. This note 
and the proceeding, on which it comments, appear on the same 
paoe, atid all in one connected series, with the reference to the • 
exhibit G ; the omission of which is accountc-d for, as above ex- 
plained, under variance No. 20, p. 135. 'Ihe note in question re* 
fers to that part of the court's decision, vvhich assigns, as a rea- 
son for the rejection of the documents, '"that many of them are 
tint snfficientlif authenticated to aulhori/.e their reception, without' 
an express and sufficient wah'cr of all exce|)tions entered on the 
rccord.^^ Which is thus commented on, in the note* 

"'"It w:^s the cause of extreme surprise to mc, is it wa=; to every by-stander, 
snd as I have no doubt it is to the reader, that sucli a condition frir the admis- 
sion of the documents on the record should have come from the court. If 
the documents were proper testimony, they ouu'iu to have been adn:itted 
without any conditions, and if ti)ey w<;re not test-monv', they ought to liave ■ 
been rejected. As to the haracter of the documents, whctlier confidential 
or ether '.vi;'.e, that was an allair for me to consi-ler, and )iot for the court. It 
was one vvliich tiie court had notiiing to do with. Tiic reader huring the do-- 
cuments before him, can judge of the projjriety of tlie otucr poii-. of the ob- 
jection, to wit: "th.^t collectively tliey present no fiicts' or views ealculutcJ 
~'.r> elucidate the subject submitted to the coitr'.. L). l-" " 



153 

Immediately succeeding that note, on the same page, is thf, 
'< note referring to exhibit G, in these words ; " Not in mj posses* 
sion." 

The nature of the transgression against the truth of the fact 
here suggested, will be found in its proper place. 



THE HYIBEXCE 

UNDER THE FIFTH AND LAST SPECIFICATION. 

Specification 5. The having made public in the aforesaid 
pamphlet, " without any authority or permission for that purpose, 
oflicial communications to the government ; and official correspon- 
dence with the government:" and also having made public, "on 
other occasions, between the 1st of October, 1824, and the 15th 
June, 1825, orders and instructions from the government, and of- 
ficial correspondence with the government." 

It has been already remarked that the whole mass of documen- 
tary evidence was produced and read, indiscriminately, without 
any distinct appropriation, or application of the same, to any one 
of these live specifications : with the exceptions of the five letters 
offered under the 1st, and the tiote of 33 variances above cited 
under the 3d specification. Among this mass of documents, only 
thiee publications of any kind ('as proceeding from Com. P.^^l are 
given in evidence; and all of these contain matter that may ad- 
mit of application, indifferently, to the several specifications. Of 
course it becomes necessary to fish out from the mass of matter 
contained in these publications, every document that may come 
under the description of official communications, correspondence, 
orders or instructit)ns; in order that it may appear from their 
tenor, which of them import any obligation of secrecy, express or 
iiiiplifd, or were published without authority, so as to bring the 
pMbliciUion of them within the terms of this specification. 

In the pamphlet ('whicli is the only publication specified as con- 
taining any documents within the given description^ are found 
the following: 

[In this list such of the letters as are already printed in the 
foregoing pajjes, are referred to by the dates, Stc. the residue 
printed verbatim.'] 

1 . Letter of instructions from Secretary Thompson to Com. 
Porter, 1st Feb. 1823. 

2. Com. Porter's official report to Secretary Southard, of the 
affair at Voxardo, loth Nov. 1824. 

3. The Secretary's letter of recal, 2rth Dec. 

Navy Department. 29f/i Dec. 1824. 

4. Sir: I have thought proper to relieve Captain Porter. — You 
will [)roceed to the Constellation, if ready, if not ready, in the 

20 



154 

Shark, with all despatch to Thompson's Island, and if Captain 
Porter be not there, to such place as you may be induced to be 
believe you will be most likely to findhim. If on your ])assage 
to Thompson's Island, you receive information where he is, you 
are at liberty to change your route ; the object being to find him 
as early as possible. 

You will deliver the letter directed to him, and on his leaving 
the station, receive from him the command of the squadron, with 
such papers and instructions as he may furnish. You have enclosed 
copy of the original orders to Captain Porter, dated 1st Feb. 1823, 
with extracts from others. You will take them for your guide, 
and follow their directions. It is confidently expected that you 
will exhibit zeal, caution, and perseverance, in discharge of your 

duties. 

I am, very respectfully, 

SAML. L. SOUTHARD. 
Capt. Lewis Warrington, JN^or/oifc, Va. 



V. S. Ship John Adams, 

Thompson''s Island, Jan. Ist, 18x13. 

5. Sir: I have the honour to transmit you copies of the state 
ments made to me, which induced me to take the step I did, as 
regards the Spanish authorities at Foxardo. 

I have the honour to be, your obedient servant, 

I). PORTER. 
Hon. Saml. L. Southard. 

6. Com. Porter to the Secretary of the Navy, 30th Jan. 18-25. 

7. Do. to Do. 1st March, 

8. Do. to Do. 2d March. 

Washington, JIarch 8, 18:25. 

9. Sir : The officers named in the enclosed list, will be nece? 
gary as witnesses, to enable me to repel, in a suitable manner, 
the foul charges of Mr. Thomas Randall, and Mr. John Moun- 
tain, and the injurious insinuations and assertions on the floor of 
Congress, against myself, and the officers under my command. 

Understanding that vessels having some of them on board are 
about sailing, I beg that they may be detained, provided it can 
be done without injury to the public service. 
I have the htmor to be, 

Your obedient servant, 

D. PORTER 
Hon. Samuel L. Southard. 

10. Com. Porter to the Secretary of the Navy, iGth March, 

11. The Secretary to commodore Porter, l6th March. 

12. Cora. Porter to the Secretary, I3th April, 



155 

13. The Secretary to commodore Porter, 20th April. 
'it) 14. Commodore Porter to the Secretary, 6th May. 

Of these, as has been seen, several were published, in various 
modes, by official acts : as printed among congressional docu- 
ments ; or directly mentioned, or referred to, in them : and aa 
communicated to the court of inquiry ; and either annexed to its 
record, or mentioned or referred to, in its proceedings, or in of- 
ficial documents, annexed to such proceedings. 

What are the various other occasions, on which such obnoxious 
publications iiave been made Cas charged in the second branch of 
this specification,) it is extremely ditiicult to conjecture : because 
Il)c only other publication, falling within the designated period 
of time, is the National Intelligencer of Marh 30, 1825 ;(b) 
which contains only the two entire letters, 3 and 6, and short 
extracts from two others, 10 and 11, all published at full length, 
in the jnuuphlet. 

The only remaining publication of com. Porter,of which any evi- 
dence has been given in the course of the trial, is in the National 
Journal of June 16, 1825 :(cj which cannot be presumed to have 
been intende*! as evidence, under this specification ; as it does not 
come within the limited period of time, between October 1, 1824 
and June 15, 1825. But what was or was not the actual inten- 
tion of introducing it, is impossible to be inferred, with any cer- 
tainty, from the course of this trial. The articles of official cor- 
respondence, contained in that paper, are found, at full length, 
ante, p. 115—116, Nos. 10, 11, 12, 13 and 14. 

They are prefaced by the following address to the printer-: 

Meridian Hill, June 15, 1825. 

Sir : In consequence of an anonymous publication which ap- 
peared in your paper of the 14th, and dated the ISth, respecting 
my pamphlet containing the proceedings in the Foxardo affair, 
&c., I have to request you to publish the accompanying corres- 
pondence. 

Very respectfully, 

Your obedient servant, 

D. PORTER. 
Mr. Peter Forcf.. 



'EVIDEXCE at lar^e, not being referable to any of the pro- 
mulgated charges or specijications.'] 

The history of the introduction of Mr. Monroe's deposition, 
and of the progressive orders on the subject, are found, ante, p. 

44-7, 48-9, 49-50, 64, 69-70. 

(a) All tlie letters comprised in the foregoing list (except 4, 5 and 9) are 
printed at full length, ante, p. 74-8. Nos. 1, 2, 3, and p. 109—114, Nos. 2,3, 
4,5,6,7,9, and p. 8y, No. 13 

(//) Ante, p. 51 . CO Ante, p. 52. 



156 

From the time and manner of introducing the application to 
the court, for the order to take the deposition, it had been infer- 
red that the sole object was to authenticate a certain correspon- 
dence, which had, just then, been the subject of some discussion. 
Accordingly, when it was perceived, from the interrogatories filed 
by the judge advocate, that the prosecution was already in posses- 
sion of the correspondence; and, consequently, that Com. P. 
was dispensed from all delicacy in regard to it, he came forward 
and admitted its authenticity; still concluding that it was the 
main end, and only operative inducement for resorting to Mr. 
Monroe's evidence : though it was perceived that the interroga- 
tories had been framed with a more extensive range, and embrac- 
ed circumstances still more foreign fas it was thoughtj to the sub- 
ject matter of any charge or specification then pending, than the 
correspondence itself. The judge advocate, nevertheless, per- 
sisted in the execution of the order for the deposition ; and re- 
quired cross interrogatories to be filed without delay. The at- 
tempt to introduce depositions to any fact, in a capital, or, indeed, 
any other case, before a naval court martial, was viewed with as- 
tonishment on the part of the accused ; as contrary to the clear- 
est and best established rules of evidence in criminal trials, and 
to positive law : the irrelevant and inadmissible nature of the 
facts apparently aimed at, independently of the irregular mode 
of proof resorted to, was thought to be no less evident and indis- 
putable. Accordingly, the cross interrogatories were prefaced 
by a formal protest against the whole procedure, and a distinct re- 
servation of all exceptions to the evidence when it should be uftVred . 
The deposition, when produced fvvhich was not till Thursday, July 
28, being the22d day of the trial, after all the evidence under the 
several charges and specifications had been got through) was 
found to have taken a still more extensive range than whiit had 
been indicated by the interrogatories : reviving topics of discus- 
sion and dissatisfaction that were thought to have been long ad- 
justed and forgotten : in short, it was considered as amounting to 
new and substantive accusations of ofticial misconduct or impro- 
priety, more grave in their import, than most of the promulgated 
charges which were in a course of trial : and incapable of bear- 
ing upon those charges, otherwise than by communicating inflam- 
ed aggravations of tliem to minds susceptible of prejudice from 
extraneous impressions. The deposition, however, was produced 
and read by the judge advocate, without opposition, Com. P. hav- 
ing determined to waive all preliminary objections to its intro- 
duction, for reasons already stated, (a) 

Interrogatories to be propounded to the Hon. James Monroe, in 
the case of Capt. David Porter, now in the course of trial be- 
fore a General Corirt Martial, at the city of Washington, ex- 
hibited Thursday July 21, 1825. 

Interrogatory 1. Are the accompanying papers, numbered 
one and two, purporting to be from Capt. David Porter to you, 

raJAnt€,p.69-rO. 



157 

o(!>iginal letters received by you from him, and when were tliey 
respectively received? 

2. is the paper numbered 3 a copy of a letter written by you 
to the said Capt. David Porter, in reply to his letter No. 1, and 
Was the sanie transmitted to liim ? Have you any and what rea- 
sons for believing; that the same was received by him ? 

3. Has it been a usual or unusual thing for a Captain in the 
Navy of the United States to solicit by letter permission to pay 
his respects to you in person ? If the latter, are yuu acfjuainteil 
with the reasons or causes which induced such applicaticm on the 
present occasion? Be pleased to state such reasons fully and in 
detail. 

4. Is it true, as is stated in your letter No. 3, that the orders 
which were given to Capt. Porter, relating to his command in the 
West Indies, and particularly tlie orders to Capt. Porter in Oc- 
tober last, to return to his station, and the order of Deceuiber 
last, recalling him, were given at your instance and under your 
inspection, and have you any reasons fur knowing or believing 
that this fact was known to Capt. Porter? 

5. Have you ever seen any reason to believe or to disbelieve 
that the Secretary of the Navy, in his official correspondence 
with Capt. Porter, indicated any hostility to Capt. Porter, or was 
influenced by any feeling nf unkindness? State particularly such 
facts and circumstances, within your knowledge, as are calculated 
to illustrate this question. , 

RICHARD S. COXE, Judge Mvocate. 

il Correspondence referred to in the foregoing interrogatories. 

March 10, 1825. 

Commodore Porter presents his respects to Mr. Monroe, and 
asks (if ai;reeablej when he may have the honor of pa} ing his res- 
pects to him. This request would have been made at an earlier 
period, but for the recent chatiges in the government, which have 
no <loubt fully occupied the Executive, and but for the hope enter- 
tained by Captain Porter, that ere this he would have been af- 
forded the opportunity of explaining his conduct, and be enabled 
to present himself to Mr. Monroe, free from censure. The de- 
sire ofpayiuij; his respects to, and ta kino, his Jeaveof, his late Chief 
Magistrate, and as he has had reason to believe friend, has over- 
come all other considerations. 



Washington, March i9., 1825. 

Sir: I received your note of the 10th in the spirit in which it 
was written, that of kind feelings for one, undei- whom you have 
acted for the last eiglit years; and who has now retired to private 
life. 



158 

I should most willingly meet you, and receive the explanation 
which you are dispbsed to give, but for reasons which I will 
frankly communicate tn you. 

All tlie orders which were given you, relative to your command c. 
in the West Indies, were given by the Secretary of tlie Navy, at r' 
my instance, aiul under my inspection. They were dictated by ^ 
a sense of duty to my country, ar.d with no unkind feelings to- 
wards you. Your letter of tlie 26fh of October 1824, to me, from i, 
^ew Castle, was received shortly after its date, and to which I r 
deemed it iiupro]jer to give any reply. 

It has become the duty of my successor to examine and decide 
on that important subject, in all its parts, in the manner which 
shall appear to luirn most proper. 

In this stage, although retired to private life, I do not think that J 
I ought to interfere, or to receive any explanations, relative ttf-c 
transactions in which our country is interested, over which another t 
has co!itrol, ancl in which I have no concern. S 

Holding in high estimation your gallantry and patriotism, I beg ; 
you to be assured of my good wishes for your welfare, and that 
«f your family. 

With great respect, I am your very obedient servant, 

JAMES MONROE. 
Com. D. Pouter. 



Meridian Hill, March 12, 1825. 

Respected Sir: T have received your highly esteemed letter 
of this date, and feel much gratified at tlie friendly sentiments ■* 
and assurances it expresses. I can only beg to assure you, that ' 
you will carry with you in your retirement the best wishes of a 
grateful and aftectionate heart. 

I regret to observe that 3'ou are under wrong impressions as to 
t!ie object of my note. Nothing was further from my wish or in- 
tentions, than to make any explanations, or touch on any subject 
of an unpleasant nature to you. I should have made -the request 
to sec you at an earlier period, but for tlie most scrupulous deli- 
cacy, not wishing it for an instant to be believed by any one, that 
I sought protection, or to give the slightest cause for such belief. 

I feel confident of the correctness of my conduct, and I am sa- 
tisfied that the govt^rnment will approve it, when 1 shall have an 
0])portunity of explaining it. My visit was intended as one of 
pure personal respect, and unconnected with any considerations 
of a selfish nature, only so far as my feelings were concerned; I 
was not certain whether it would be acceptable, and desirous ot 
guarding against any thing disagreeable to you, I thought it ad- 
visable to address you a note. 

The circumstances which caused me to address you from New 
Castle, I regret most sincerely, and 1 do assareyou, it would give 
me more pleasure to learn that I was in error, than to believe that 
my impiessions, at the time of writing, were correct; the serious 
charge, at the time, brought against me, and the consequences, I 



159 

(lid not think T merited ; the very circumstance of claiming pro- 
tection from you, was of itself an evidence that I did not think 
you were actuated by any unfriendly feelings towards me, but I 
did think you were under wrong; impressions, which caused me 
to enclose you the copy of a letter which I was charged with ne- 
glecting to write. 

I hope, at some future period, I shall have an opportunity to 
assure you of the high respect and consideration with which I 
have ever held your exalted character and virtues. 

D. PORTER. 

Hon. James Monroe. 



Navv Depautment, October 21, 1824. 

Sir: Your letter dated the 19th instant has created surprise. 
Looking to the good of the service, every attention lias been 
I shewn to you which your station required, and which could be 
di<:tated by a just estimation of your public service. 

The command which was given to you, at your earnest request, 
on the 1st of February, 1823, was a highly imj.ortant one, and 
your conduct in discharge of its duties, satisfactory to tlie Pre- 
sident. The interval since you left that station, has been in- 
teresting, and it is understood that piracy has revived and is mak 
ing extensive ravages in our commerce. 

Communications have been made to you, to apprise you fully 
of this fact. — The presence there of an officer is of course ne- 
cessary. The size of the vessel in which he sails is matter of 
small moment, and must depend upon circumstances. You are 
aware of the intention to send the Constellation to that station 
as soon as she can conveniently be prepared. 

Your return to this place without permission, or apprising the 
department of a necessity for it, was unexpected. But no com- 
plaint has heretofore been made of your remaining here, because 
it was believed that your health was not perfectly good, and your 
shoulder lame and painful. 

But this obstacle has been removed, and had you earlier ap- 
prised the department that you considered this place within the 
limits of your station, that the command had ceased to be plea- 
sant to you, and that you were apprehensive of the climate, you 
would have been relieved, and a successor appointed. But hav- 
ing failed to give this information, and the presence of a com- 
mander on the station being now indispensable, you will proceed 
to it. 

When it is convenient to the department, your wish to be re- 
lieved shall be gratified. Upon a re-perusul of your orders, you 
will find that no intimation is given, that Th(>ni()Son's Island 
alone, is to be considered as the station, and that you are to 
remain stationary there. — nor tliat you ate to lead in person every 
^expedition fitted out from it. 
•-I purposely abstain from comment upon certain matters in 



160 

your letter, — you will hereafter hear from the department on the 
subject. 

1 am, very respectfully, &c. 

SAM'L L. bOU niARD. 

Com. David Portek, Com. U. S. 

JV'aval Forces, JVest-Iudirs, ^c. Present. 

\_The last htter rrf erred to in the f'orejj;oiug interrogatories, U:< 
the letter of recal, JJecemhcfr 27, 1824, from the Secretary of the ? 
A^avy to commodore Porter, and already giveii, ante, p. 78, JVu. 3.] 

[Protest originally annexed to the following interrogatories on r. 
the part of com. Porter to Mr . Monroe i and delivered in withh 

the same, on Friday, July 2il, 1 S25.'] 

Captain Porter liaving examiiictl the proposed interrogatories, 
to Mr, Monroe, on the part of the ,)uclg(» advocate, is, after ma- 
ture reflection, and with the best aid of legal advice, in his pow^ '■ 
er to obtain, utterly at a loss to conceive, by ivhat authority he pro- 
pose<l commission to examine Mr. Monroe, in the mariner pro-' 
posed, has been claimed by the judge advocate ; or how any evi- 
dence, to be taken under it, can be admitted, in the place of the 
testimony of the witness, in person, before the court: or what' 
legitimate relation or bearing the evidence, which the said inter- 
rogatories import an intention to produce, can have to any mat- 
ter involved in the present trial. Having repeatedly called upon 
the judge advocate for some precise specificati<in of the circum- 
stances wherein the supposed guilt implied by the accusation, 
under the head of tlie 2d charge, consists ; and of the gist or 
point of the accusation to which the proposed evidence applies^— 
he forbears any further attempt to penetrate the mysterious and' 
studied silence, by which all reasonable information on these 
points is concealed. He, therefore, simply proposes the follow- 
ing interrogatories, on his part ; being al! that, under present cir- 
cumstances, he can conjecture to be, at all, pertinent to any fact, 
of which the judge advocate's interrogatories indicate an inten- 
tion to make inquiry and proof. But he does so under a solemn 
})rotcst against the legality, the justice and the fairness, upon 
liny piincijile of law, equity or candor, of the whole proceeding: 
and distinctly reserving to himself, when tlie execution of this 
pretended comniission shall be produced, every proper exception 
to the regulaiity or co;npefency of such commission, and of the 
execution of the same: and to tlie pertinency and admissibdity 
of any evidence to be olt'ered under it: if to him, it shall seeui 
necessary or proper to interpose such exception. 
July 22. 1825. 

iNrEimooATouiEs to Mr. Monroe, on the part of Ci'nnmodore 
Porter; delivered, under the foregoing protest, Friday, July 
22, 182.3.] 

1. Please to say whether, in the latter part of June, or the be- 
ginning of July, 1824, (or about tiiat time,) you sent a message 
by commodore Chauncey to n^e, to say that 1 must not visit you 



161 

sntil after I had seen the Secretary of the Navy, then absent, nor 
until you had received some explanation as to the cause of my re- 
from the West-Indies ? 

2. Were you not induced so to interdict personal communica- 
tion with ine, in consequence of having received the impression 
that I had left the West-India station without having apprised 
the Navy Department of there being a necessity for it ? 

3. W*as the letter from the Secretary of the Navy to me, of 
October 21, 1S24, (a certified copy whereof is annexed,^ contain- 
ing a peremptory order for me to proceed to the West-Indies, 
in the John Adams, contrary to my express and known wish and 
entreaty, and explaining the reasons for giving such order, writ--^ 
ten or dictated by yourself, in form or substance? If not, was 
it shown to you, and by whom, before it was despatched to me ? 
Please state, particularly, by whom the original draught of this 
letter was prepared. 

4. Was not the impression you had received of my having de- 
parted from the strict line of my duty, in quitting the West- 
India station, the operative inducement, or did it weigh any thing 
with you in either writing, or causing to be written, or sanction- 
ing after being written, such peremptory order to go out in the 
John Adams, instead of waiting a few weeks for the Constella- 
tion, as I had requested r 

5. Was it not represented to you, and have you not expressed 
yourself as having received the impression, that I had only vent- 
ed, upon the authorities and people of Foxardo, my own angry 
feelings and personal pique, at having been ordered out in the 
John Adams in the manner I was, or something to that effect; 
or was any such imputation addressed by any body to you, or 
uttered in your presence, and by whom ? 

6. In consequence of the interdict to my personal intercourse 
with you, as above suggested in my first interrogatory, did I not 
forbear to call on you, even on the 4th of July, and continually, 
till afterwards repeatedly invited to do so by special messages 
from you ? 

7. When, and where, and upon whose application, did you com- 
municate and deliver to the Secretary of the Navy, the said let- 
ters of the 10th and 12th March last, annexed to the judge ad- 
vocate's interrogatories ? If they were so delivered on a written 
application, please annex it to your answers; if upon a personal 
one. please say from whom, and when, and where. 

8. Was that correspondence so communicated with an inten- 
tion that it should be deposited among the archives pf the Navy 
Department, and when was it so deposited ? 

9. Do you know, at the time I wrote you the said letter of the 
26th October, 1824, mentioned in yours of the 12th March last, 
I had been made acquainted with the fact of your having either 
originally draughted, or dictated, or directly approved, the said 
letter from tht Secretary of the Navy of the 21st of the sanio 
month ? 

21 



162 

ANSWERS oj James Monroe to the interrogatories pro- 
pounded to him, in the case of commodore Porter, in the trial 
now depending before a general court-martial, at the city of 
Washington. 

^Produced and read, Thursday, July ^S, 1825.] 

1st. To the first interrogatory, on the part of the United 
States, I answer, that the letter or paper numbered one, is, ac- 
cording to my recollection, a correct copy of a letter, from corn- 
modore Porter to me. I return the paper, with a note to this 
effect on it. 

The letter numbered 2, is an original letter from commodore 
Porter to me. They were both received about the time of their 
respective dates. 

2d. Answer to the second. The paper numbered three, is a 
c^py of my letter to him, of the I2th of March last, and, as I 
believe, a correct one. 

3d. Answer to the 3d. It was not usual for a captain, or any 
oflBcer in the navy or army, to solicit an interview with me by 
letter. They always called, when they had business; and gene- 
rally on their arrival in town or departure from it; and I always 
received them without form, when I happened to be free from 
other engagements. 

The interview, in the instance stated, was asked, as I presume, 
in consequence of my having recalled him from the command in 
the West-Indies, on account of the attack made by him on Fox- 
ardo, in the island of Porto Rico. That recal implied a doubt of 
the propriety of his conduct in making the attack, which had ne- 
ver been removed by any intimation from me, either by inviting 
him to see me, or otherwise. His return, occurring so short a time 
before I left office, I deemed it improper to take any step in re- 
gard to the attack, while 1 remained in office. I thought it more 
just and candid towards commodore Porter, to leave the affair to 
be acted on by my successor, especially as the measure, in con- 
nection with others relating to him, might be thought to involve, 
in some degree, the propriety of my own conduct. 

4th. Answer to the 4th. The orders relating to the command 
of commodore Porter in the West-Indies, from the commence- 
ment to its termination, including, of course, that of October 
last, directing him to return to his station, and that of December, 
recalling him from it, were given at my instance, and under my 
immediate inspection. The coi^^mand was deemed a very im- 
portant one, requiring great discretion in its execution. The ob- 
ject was the suppression of piracy; but in stationing a naval 
force there, I knew that it would attract the attention, not of 
Spain alone, on whom it more immediately bore, but of the new 
governments, our neighbours to the south, and, in certain respects, 
of several of tlie powers of Europe, who were neutral in the con- 
test between the belligerent parties. The question, whether free 
ships should make free goods, the extent of contraband of war, 
the transportation of specie, and other questions of the kind, ne- 



163 

cessarily occurred, when that force was detached to that statloo, 
for the special object designated. They had been frequently un- 
der the consideratiou of the administration before, and were 
brought more pointedly before it on that occasion. My impres- 
sion is, for I have not a copy of the instructions then given, that 
they were drawn with great care, and dictated by a desire rather 
to err, if error should be committed, on the side of moderation, 
than to risk a variance with any of the parties concerned. These 
questions were to be settled by treaties, and especially vvith the 
new governments, and which required time. My intention was, 
that the commander of the squadron, and all acting under him, 
should take nothing on themselves, but coujQne themselves to the 
duty specially enjoined on them, and obey strictly their orders. 

When informed, in June last, that commodore Porter had left 
his station, and returned to the United States, I asked the Secre- 
tary of the Navy, by what authority he had done it? Had leave 
been given him ? The reply was, none had been. I then asked, 
did his original instructions authorize him to come home, when 
he thought fit? I do not recollect the precise answer, or that any 
such was given to me, but my impression was, that they did not. 
The Secretary had made arrangements for his departure from 
town, on a visit to his family, and I saw no reason why he should 
delay it, on account of the arrival of commodore Porter. No- 
thing material, more, that I recollect, pj^sed between us. I did 
not see him again before his departure. I reflected much on the 
subject, and decided, on the next morning, the course which I 
should pursue, in regard to commodore Porter. I arose early, 
and sent for commodore Rodgers, and was informed that he had 
gone to Norfolk. I then sent for commodore Chauncey, and after 
expressing my deep regret that commodore Porter should have 
left his station without leave, which was the only question I made 
in the case, I told him that the subject merited inquiry, and that, 
as the Secretary had left town, 1 could not see him till the Secre- 
tary returned, nor until I should, on further, and more mature 
consideration, decide what course should be taken in the case. 
I requested him to see commodore Porter without delay, and to 
prevent his calling on me in the interim; but to do it in the mostr 
delicate manner that he could : for, haviog high respect for his 
services and merit, and a personal regard for him, I wished to take 
no step which should wound his feelings, which I should not be 
compelled to do, from a high sense of duty to my country, and an 
earnest desire to support the credit of the navy. An interview 
between commodore Chauncey and commodore Porter took place, 
whereby an interview between commodore Porter and me was 
prevented. 

In conversations with Com, Rodgers, after his return, atid with 
Com. Chauncey, who made friendly explanations, in regard to 
Com. Porter's conduct and views, and in consideration, also, of 
his having been wounded in the late war, and an intimation that 
he then suffered from the wound, I thought myself justifiable, 
especially as I had given a de,cisive proof of the sentiment which 
I entertained of his return from his station without leavf», to paw 



164 

the afFaii' over without further notice, and of which I requested 
them to inform him. He accordingly called, afterwards, and was 
received with kindness. My desire was, that he should return 
soon to his command, but I do not recollect that any thing was 
said to that eft'ect by me. I presumed that what bad already 

J)assed, would be a sufficient proof of that desire. His remaining, 
lowever, so long in the country, gave me concern, especially as 
we were repeatedly advised that piracy had revived, and was do- 
ing much injury to our commerce. I, however, delayed noticing 
it for some time, under feelings of the kind stated; and in expec- 
tation, also, which I continually indulged, that he would soon de- 
part. I at length requested the Secretary to instruct him to re- 
sume his station without delay, and to do it in the John Adams, 
which the Secretary did. To this, I recollect that the Commo- 
dore gave a reply, which was deemed highly objectionable ; and 
respecting which I had great doubt, as to the part, regarding the 
office I then held, which I ought to take. On great consideration, 
however, I decided to order him immediately to his post ; with 
intention that, being there, and in rule, to decide afterwards, 
what it would be proper to do in the affair. In taking this course, 
I yielded to feelings that were favorable to him ; and in the hope 
that his conduct, at his station, and towards the government, 
would be such, as to permit the whole aftair to be adjusted; or 
rather to be passed over, without injury to the service. 

According to my recollection, I drew a sketch of the order in 
question ; or so much of it as to give a distinct idea of what 1 in- 
tended ; and certain I am, that I saw the letter, that of the 21st 
of October last, before it was sent. 

The decision was soon taken after (he affair of Foxardo, to re- 
cal Com. Porter, that, being present, he migiit explain the cir- 
cumstances, and reason of his conduct. I saw the order and ap- 
proved it. I do not know that Com. Porter was aciiiiainted with 
the fact, further, than in speaking of the subject to friends after- 
wards, I frequently mentioned it ; and thatl intended to include 
that with the other orders, and particularly the order of October 
preceding, in the letter which I wrote to him, after I retired from 
office, in reply to his already noticed. 

5. I never saw any proof of unkind feelings in the Secretary 
of the Navy, towards Commodore Porter; nor have I any rea- 
son to believe, that he ever acted under the influence of such. I 
saw, on the contrary, proof of a different disposition, in more in- 
stances than one. Having, from the considerations above stated, 
been very attentive to the conduct of this squadron, from the be- 
ginning; and, indeed, to the others, in other seas, and prescribed 
the measures to be taken, and orders to be given, after due con- 
sideration, and consultation with those on whom I had a right to 
call, I was anxious that my own responsibility, in its full extent, 
should be known, in every instance, and especially to those con- 
cerned, before I left office, and it was on that principle that I ex- 
pressed myself so fully to that effect, in my letter to Com. Porter 
m March last. It was on that principle that I deemed it proper 
to deposit in the department, before 1 left town, the evidence of 



165 

that correspondence, consisting, according to my recollection, pf 
his letter to me, and a copy of my reply. 

1. To the first interrogatory proposed on the part of Commo- 
dore Porter, I answer, that I did authorize Com. Chauncey to see 
him, and to prevent his calling on me, at tlie time stated, and for 
the reasons tliat are particularly an<l fully explained, in my an- 
swer to the 4th interrogatory on the part of the United States. 

2. •" took the step for the reasons stated in reply to the 4th iu- 
terrojratory above referred to. 

3. To this interroiiatory, an answer has, also, been already 
given, in reply to the 4th interrogatory on the part of the United 
States. 

4. To this interrogatory, an answer has likewise been given, in 
' reply to the 4th, referred to above. I have thoujj;ht it better to 

give a full and connected explanation of the measures taken ia 
the instances in question, and of the considerations on which I 
acted, in reply to one interrogatory, which embraced several, than 
in detail, in reply to each. 

5. When the account of the attack on Foxardo was received, 
much remark was made on it, and with others, that of the kind 
suggested. I am inclined to think, that I made it myself; but in 
that case, to some frieads of Com. Porter, and rather in a confi- 
dential way than otherwise, though certainly under no injunction 
to that effect. I probably mentioned it to others, in the same 
spirit, and particularly to the members of the administration, or 
to some of them. The answers already given to the other inter- 
rogatories, and particularly to the 4th on the part of the United. 
States, and the documents referred to in them, will explain the 
cause, to whicli such an idea is to be attributed ; which, however, 
was merely incidental and casual. I do not recollect receiving 
any letter sugu;esting that idea, nor do I believe that I did, though 
it is possible thai: I might. 

^' 6. To this interrogatory an answer has already been given. 

7. To this, also, an answer has been given. 

8. The correspoiuience was deposited in the Navy Department^ 
as a document relating to oy public conduct, in an occurrence, 
interesting to others as well as to the public, to be used only for 
public purposes, sh<»uld such present themselves, to make the use 
thereof proper and necessary. I readily admit, that Com. Porter 
did not ask the interview for any purpose other than that stated 
in his reply to my letter, but stdl I thought it more consistent with 
the part I had acted in thai ailliir, and with what I owed to him 
as well as to others, to decline the interview; to state to him 
the part I had acted in the concerns in question, ami to deposit 
the evidence thereof for the purpose stated, in the department 
while I was at Wasl.ington. 

9. I had never seen Com. Porter after the date of his letter to 
me of October 26th : nor made to him any communication by let--" 
ter, and, therefore, do not know that he was apprised of the par- 
ticular interest which I had taken, and of the part 1 had acted in 
jCegard to the letter from the Secretary of the Navy to him of Oc- 
tbber.last, referred to in this interrogatory. The subject being 



166 

delicate and interesting in many views, I never spokeof it butin 
a guarded manner, unless to friends, and among them, some whom 
I knew to be his friends also, and with a view to produce a good 
eft'ect in relation to the interests and parties above referred to. 

JAMES MONROE. 

Virginia, Loudoun County, Set. 

This day, James Monroe personally appeared before me, John 
Baj'ly, a magistrat': of the said county, and made oath that the 
facts stated in his several answers contained in this sheet marked 
(3,) and two other sheets, one of which is marked (I,) and the 
other (2,) are true, to the best of his knowledge and belief. 

Given under my hand and seal the 25th day of July, in the year 
1825. 

J. BAYLY, [seal.] 

This deposition was understood to imply charges or reflections 
upon commodore Porter's past conduct, to the following efiect: 

1. That he had left his station in the West-Indies, in June, 
1824, without authority. 

2. That he had not apprised the Secretary of the Navy of the 
necessity for so doing. 

3. That after being apprised of the disapprobation with which 
his return has been viewed by the government, and of the ne- 
cessity for his presence in the West-Indies, he had, nevertheless, 
remained, to the apparent neglect of his duty, till compelled tO' 
return by a peremptory order in October, 1824. 

4. That his request to be permitted to remain, a short time 
longer, in order to have a ship of a larger class, fitted out for the 
service, was unreasonable. 

To justify himself on these points, he produced a mass of do- 
cuments; undertaking to prove thereby the following facts : 

1. I'hat the question whether "his original instructions au- 
thorized him to come home when he thought fit," as propounded 
by the I'resident, according to Mr. Monroe's deposition, ought 
to have been answered in the affirmative. 

2. That, acting upon that understanding of his instructions, 
he had, the year preceding, returned home, when least expected 
by the government ; and had been received, without the slightest 
intimation of disapprobation : but, on the contrary, with distin- 
guished marks of approbation : and so, that his return, the year 
following, under the like circumstances, was justified by prece- 
dent and acquiescence. 

3. That lie had taken every necessary and proper precautioa . 
to apprise the Navy Department of his intention to return, in the 
summer of the year 1824, and of the necessity for it. 

4. That after he had explained tlie authority and the reasons 
for his return, in the summer of 1824, he had every reason to 
conclude that it was approved, and the government entirely sat- 
isfied. 

5. That during his whole stay here from June to October, he 



167 

received no intimation, that the government desired his return 
to the VV'est-Indies, or that the public service required it. 

6. But, on the contrary, he had every reason to conclude, that hia 
stay was not only approved, but necessary ; and that the prepa- 
rations for his departure were not completed : and also that pira- 
cy had been so far repressed as, at that time, only to require 
watching with a few small vessels, and to dispense with his pre- 
sence for the time. 

7. Tha't the propriety and necessity for a ship of war, of a 
large class, on the station, had been repeatedly acknowledged, 
and repeatedly promised, for nearly a year before he received 
his orders to resume his station in October, 1824. 

The mass of documents produced to these several positions 
were of the fr)llovving effect : 

1. As to the general and express authority to return, when 
sickness or other causes made it necessary, 

1st. The last clause of the general letter of instructions, of 
February 1, 1823, from Secretary Thompson: ante, p. 76 : re- 
commending the utmost watchfulness, to guard, in every possible 
way, against the unhealthiness of the climate, &c. 

2d. Letter from Secretary Thompson to com. Porter, August 
19, 1823. 

" In the last paragraph of your letter dated the 1st instant, 
transmitted by the United States' schooner Ferret, you men- 
tioned, that circumstances will, towards the fall, render your re- 
turn to the United States, for a short period, necessary ; you 
will please to avail yourself of the time most suitable for this 
purpose, and return to the United States, in the manner most 
convenient to yourself, and least prejudicial to the interests of 
the service." 

3d. Extract Do. from Secretary Southard, Sept. 50, 1824. 
" The schooner Shark, having <m board commodore Rodgers, 
and several surgeons, will leave New-York about the 1st of Oc- 
tober, and reach Thompson's Island as soon as practicable. The 
uncertainty and anxiety which prevail as to your own health, 
and the health of the squadron, and a desire to furnish the best 
assistance, and procure information, which may be a safe guide 
on all future occasions, are the inducements to this measure. 

The orders of commodore Rodgers will be communicated to 
you on his arrival ; and you will render all the aid, which your 
health will permit, in accomplishing the object of his visit. It is 
intended that you shall remain in command of the station, or re- 
turn home as your health may require, and your inclination 
prompt. Commodore Rodgers will return immediately after 
he shall have accomplished tlie object of his visit." 

2. As to the authority implied froui precedent and acquiescence, 
exemplified by the approbation with wli-ch his return, under si- 
milar circumstances, thour^h entirely unexpected, in October, 
1823, had been received. 

1st. The last mentioned letter, showing that commodore Rod- 
gers had been despatched, the last of September, or beginning of 
October, with the expectation of finding commodore Porter at 
his station in the West-Iudiea. 



168 

2t}. Com. Porter's onkial report (dated Washington, Oct. 2r 
J823) of his arrival tVom the West Indies, and the causes &c. 

(EXTRACT.) 

•• Sir : I have the honor to report to you my arrival here, in tlie 
U. S. galliot the .Sea Gull, from Thouipson's Island, in forty- 
three days; and from which place I was driven with the squadron. 
by a pestilence which made its appearance there, carrying oft, in 
a short time, for the want of the necessary medical aid^ on the 
station, a great number of val-iable officers and men. Thss cir- 
cumstance induced me to order the large vessels to Hampton 
Roads, there to remain for a short tine, where medical assistance, 
if required by them on il^oir arrival, could be obtained. r»ut I an» 
happy to ii'foriT^ v^u that, with t!ie ex'ception of some intermit- 
tents, con'a-acted'since their arrival, they are perfectly healthy, 
as all the small vessels were which were left on the station." 

3d. Answer of Con. Chauncey, acting for the Secretary of 
the Navy, in his absence. 

Navy Defartmisnt, 28th October, 182rv. ' 

Sir: Your letter of the 2rth inst. has been received. On 
your recovery from a dangerous illness, produced by great expo- 
sure and much suffering, you will be pleased, Sir, to accept my 
sincere congratulations. 

In conducting the movements of the squadron entrusted to 
yoin- charge, you have displayed that intelligence, promptitude,, 
and vigor, which eirectuallv arresting the depredations ot the 
freebooters, have afforded security to our trade, and justly entitle 
yo'i to the unqualified approbation of this Department, and to 
the thanks of your country. 

The conducl: of the ollicers and men under your command, has > 
been such as might have been expected, from the example of their 
chief: and you will be pleased. Sir, to assure them of the consid- 
eration in which their services are held, and the high sense enter- 
tained of their devotion to a most arduous and dangerous service. 

The want of medical aid, of which you so justly complain, 
will claim the early and special attention of this Department. 

If the state of'your health will permit, you will take upon 
v-our^elf the general suj)erintending direction of the equipment 
of the vessels of your squadron, now at this yard and at Norfolk. 
liCt their comn:anders report to you (heir wants, that you may , 
make them known to tiie Board of Navy C«)imuissioners, who' 
will cause every requisite supply to be furnished. 
I am, very respectfully, 

Sir, your most obedient servant,, 
I. CHAUNCEY, 
For the Secretary of the A''avif. 

David Pouter, Esq. 

Comvumding a Squadron ih t'lz West Indies 
and Gulf of Mexico, 



169 

4th. the Secretary of the Navy's report to the President, Dec. 1, 1823, 

EXTRACT. 

" Captain David Porter was appointed to the command of the 
squadron, and sailed from Norfolk about the 10th of February 
last. His station was at Thompson's Island, from which he des- 
patched his vessels, in such way as he judged best suited to at- 
tain his objects. The annexed extracts from his letters and re- 
ports exhibit the results. 

" The size of most of the vessels, the nature of the duties, 
and the exposure of the officers and men, called for a display of 
perseverance and fortitude seldom required of those engaged in 
our service — but the call was well answered. Every thing was 
accomplished, which was anticipated from the expedition. Fira- 
cij as a sijstem, has been repressed, in the neighborhood of the Is- 
land of Cuba, and now requires only to be icatched, by a proper 
force, to be preventcfl from afflicting commerce, any further in 
tliat quarter. The public authorities of the Island of Cuba man- 
ifested a friendly disposition towards the squadron, and render- 
ed much assistance in the pursuit of its objects." 

" The squadron was healthy and prosperous, until about the 
middle of August, when a malignant fever broke out at the sta- 
tion, and destroyed many valuable lives. The first reports of 
this calamity were brought to the Department on the 17th Sep- 
teuiber. At the time tliey left the island, Capt. Porter and most 
of the medical odiccrs were sick, and there was great cauee t»~ 
fear that the squadron would be deprived of its commanding of- 
ficer, aiul of the medical assistance necessary to its safety. 
Under these circumstances it was considered expedient to send 
to the station an officer of rank and experience, with a sufficient 
number of surgeons, to furnish, in any event, the aid necessary 
for ihe safety and proper conduct of the squadron, with power fo 
remove it, should that be found necessary. Capt. Rodgers cheer- ' 
fully consented to encounter the hazard and responsibility atten- 
dant on such an expedition. He sailed from New York as soon 
as a vessel could be prepared for the purpose ; but, before his ar- 
rival, Capt. Porter had become convalescent, and, with the greater 
part of the squadron, had returned to the United States. The 
reports of these officers will fully explain their views of the 
causes of the disease, and the means by which a recurrertte of it 
may be prevented." 

9th. The President's message to Congress, Dec. 2. 1823. 

(!<:XTRACT.) 

"In the West Indies and tlie Gulf of Mexico, our naval force 
has been augmented, by the addition of several small vessels, pro- 
vided for by tlie " act authorizing an additional naval force for 
the suppression of piracy," passed by Congress at their last ses- 
sion. That armament has been eminently successful in the ac- 
complishment of its object. The piracies by which our commerce 
in the neighborhood of the island of Cuba had been afflicted, 
have been repressed, and the confidence of our merchante, in a 
great mea:sure, restored. 

0O ' 



iro 

"In the month of August, a very malignant fever made its ap- 
pearance at Thompson's Island, which threatened the destruc- 
lion of our station there. Many perished, and the commanding 
officer was severely attacked. Uncertain as to his fate, and 
knowing that most of the medical officers had been rendered in- 
capable of discharging their duties, it was thought expedient to 
send to that post an officer of rank and experience, with several 
skilful surgeons, to ascertain the origin of the fever, and the pro- 
bability of its recurrence there in future seasons; to furnish eve- 
ry assistance to those who were suffering, and, if practicable, to 
avoid the necessity of abandoning so important a station. Com- 
modore Rodgers, with a pron^ptitude which did him honor, cheer- 
fully accepted that trust, and has discharged it in the manner an- 
ticipated from his skill and patriotism. Before his arrival. Com. 
Porter, with the greater part of the squadron, had removed from 
the Island, and returned to the United States, in consequence of 
the prevailing sickness. Much useful information has however 
been obtained, as to the state ot the Island, and great relief af- 
forded to those who had been necessarily left there.*' 

3. As to the notice given by Com. P. to the Navy Department, 
of his intention to return, in the summer of 1824; and the rea 
sons for the same. 

To the Hon. the Secretary of the J^avy, 

Sea Gull, MatanzaSy May 2,Sth, 1824. 

Sir: I regret to be under the necessity of informing you that 
the fever has made its appearance on the Island, and that the in- 
ability of the acting surgeon's mate in charge of the medical de- 
partment there, to attend to his duty from sickness, renders his 
return to the north necessary. I have sent another to take his 
place, but this leaves us deplorably off for medical men. 

I purpose removing the principal part of the forces to the north 
about the middle of next month, as the only means of guarding 
against the consequences of a deficiency of surgeons. 

I have the honor, &c. 

D. PORTER. 
■ This letter was despatclied by Lieut. Legare, in the Wild 
Cat, from Matanzas, on the 29th May : Com. P. sailed from the 
same place, on his return to the U. States, on the 1 5th June : both 
voyages were prosecuted without interruption: and yet Com. P. 
in the Sea Gull passed the AVild Cat in the river, and arrived at 
Washington some hours before her : so that the Secretary of the 
Navy did not receive the letter of the 28th May, till the 24th 
June, after the arrival of Com. P. had been announced : upon 
hearing of which he expressed surprise; as a thing unexpected 
by him. 

j^Comraodore Porter's official report of his arrival, &c.] 

Washington, June 25, 1824. 

Siu: I have the honor to inform you that I arrived here yes- 
terday in the Sea-GuU, from the coast of Cuba, in nine days, and 



171 

shall be prepared to return to the West-Indies, so soon as the 
season will render it safe to do so ; and iny health, which requires 
a respite from the effects of a tropical climate, will admit. My 
former communications have apprised you of my intentions of re- 
moving most of the vessels under my command to the North, 
during the sickly season. Orders have been given by me on the 
subject, and every arrangement made to give as much protection 
to our commerce, as the force remaining on the station will ad- 
mit of. I had purposed sailing from New-York, and visiting in 
my way out, as heretofore, the windward islands, so soon as I can 
get a sufficient force together ; and leaving a small detachment 
in the neighbourhood of St. Thomas, for the protection of our 
commerce there, where it was asked for, by our merchants, when 
1 last visited that place. 

The John Adams, it is probable, will require heaving out en her 
return, which will be in a week or twoj which will leave me with 
only one sloop of war. 

As the health of captain Wilkinson required his return, I have 
left lieutenant Oellers in command at Thompson's Island, with 
full instructions as to the duties to be performed there, and I have 
left all necessary orders, also for the commari'ders of such ves- 
sels as may arrive during my absence. 

The island promises to be healthy this season.— I have left 
about sixty officers and men there, but I am sorry to say, I had 
only a surgeon's mate to leave to attend them, during the sickly 
season. I have, during; this season, greatly improved the com- 
fort and condition of the island, and thereby lessened that re- 
pugnance to remaining there, which formerly existed among both 
officers and men. 1 shall proceed to New-York in a few days, 
to hasten the despatch of the stores for the squadron and island, 
which are now preparing there, and which are much required. 
If there are any instructions from the department affecting my 
various duties, [ shall be happy to be furnished with them as 
early as possible. 

I have the honor to be. 

Very respectfully. 

Your obedient servant, 
(Signed; D. PORTER; 

Y/b«. Secretary of the JSTavi/. 

4. 5. 6. That Com. P. had every reason to conclude and im- 
plicitly believe fafter the explanations required of him had been 
communicated to the President, and after the kind reception, givr 
en him, in consequencej that the government was entirely satis- 
fied with his return, and his continuance, for the time, in the U. 
States: T!iat he was, during the whole time, issuing orders to the 
officers under his command in the W. Indies, &,c. &c. receiving 
from them, and communicating to the Department, official reports 
of their operations in the W. Indies, &c. and of the progress of 
repairs and other preparations, in different ports of the U. S., to 
place the scjuadron in an efficient state for active service; busily 
superintending or directing these preparations; making official 



172 

reports relative to every department of duty appertaining to his 
commaHd ; receiving, from the Department, official orders and in- 
structions, to be executed by means of intermediate orders from 
him to his officers in the W. Indies, &c. and, in other respects, 
unremittingly and laboriously employed in the active duties of 
his command ; except when prevented by ill health, and absent at 
the springs: That as late as the 11th Sept. ('the date of one of 
the letters found in the following seriesj the preparations, for 
sending out his squadron to the VV. Indies, were not considered 
by the Department, any more than by himself, as complete : 
That the government, during the whole time, manifested entire 
content, with his continuing to exercise, here, his command, in 
all its departments foreign and domestic ; and participated in 
such mode of executing its duties: That ail the intermediate 
complaints, from the W. Indies and elsewhere, of piracy and 
other interruptions of our commerce, were communicated to him, 
from the Department, expressly with a view to his despatching 
orders to enforce the proper measures of redress or precaution; 
and not to his going in person: That he received not, till Oc- 
tober, the most distant intimation of his presence in the W. In- 
dies, being expected or required : and, finally, that two months 
after he had departed, in obedience to his orders, his return to 
the U. States, during the summer, and the reasons for it, were 
officially communicated to Congress, with apparent approbation: 
Such are the points, to which the following documents are suppo- 
sed to apply. 

1st. Refer to his two letters, May 28, and June 2J, as above 
cited; the one announcing ius intention to return; the other his 
actual return ; with his reasons. 

Navv Department, 29th June, 1B24. 

2d. Sir : I have the honor to transmit to you, herewith, copies 
of letters, ber.ring date the 23d of April, loth, 17th, 24th, and 
two of the 31st of May, 1824, addressed to you at Thompson's 
Island, which it is presumed you have not received, and to which 
I beg leave to call your attention. Should I find, upon further 
examination, any more which possibly may not have been trans- 
mitted in time to reach you, copies shall be immediately fur 
nished. 

I am, with great respect, sir. 

Your obedient servant, 
('Signed) CIIAS. HAY, 

Capt. David Porter, Commanding 

U. S. West-India squadron — present. 

Navy Department, 19th July, 1824. 

3d. Sir: I have received letters this day from lieutenant-com- 
manding John D. Sloat, announcing his arrival at New-York. 
I send you, herewith, a copy of a petition, from sundry inhabi- 
tants, and merchants, and others, of Matanzas, praying for a 
more efficient protection to our commerceo 



173 

Vou will perceive, from this statement, the necessity for the 
immediate return of the Shark, Grampus, and Spark, to their sta- 
tipn, and yon will therefore order them out as speedily as possible. 
1 am, very respeclfully, sir, 

Your obedient servant, 
('Signed; SAML. L. SOUTHARD. 

Capt, Davip PojiTEii, Cdmrnandins 

U. S. West-India squadroji, Bedfwd Springs. 

Navy Department, July 20, 1824. 

4th. Sib : It is the wish of the Department, that you cause a por- 
tion of the naval force under your command, to touch, occasion- 
ally, at the port of Tampico iii Mexico, and to afford protection 
to the citizens of the United States, engaged in commerce with 
that port. — Your attention is particularly ilirected to this part 
of the Mexican coast, in consequence of the representations con- 
tained in your communication of tlie 14th inst. 

I am, verv respectfully, &c. 
(^Signed) " SAM'L L. SOUTHARD. 

Com. David Porteh, Comm'g U. S. Naval Force, 

JVest-IndieSy Gulf of Mexico, and Coast of Jfrica, present. 

Navy Department, Ja?i/ 28, 1824. 

5th. Sir: I enclose to you copy of a letter from capt. Wm.Norrii?, 
commanderof the brig John, of Newport, R. I. detailing outrages 
committed on him and his crew near Matanzas ; and I have to 
request that you will take such measures on the occasion as the 
case requires. 

I am, very respectfully, sir, 

Your obedient servant, 
(Signed) SAM'L L. SOUTHARD 

Com. DiTin Porter, Commandine; 

U. S. Naval Force, West-Indies, Gulf of Mexico, prescni. 

Navy Department, Julij 29, 1824, 

'oth. Sir: I enclose a copy of a letter from William Neilson, 
esq. President of the American Insurance Company of New- 
York, in relation to the capture of the Mercator, having on board a 
valuable cargo; and I request that you will make such a dispo- 
sition of the force under your command as will render piratical 
aggressions of this description less frequent, if it be possible. 
I am, very respectfully, sir. 

Your obedient servant, 
^Signed; SAM'L L. SOUTHARD. 

v^om. DATin Porter, Commanding . 

U. S. Numl Farce, West-Indies, Gulf of Mexico, &c. Bedford Springs. 

Washington, August 9th, 1824. 

7th. Sir: I have the honor to transmit you the enclosed copy 
and translation of a correspondence between lieutenant coin- 
mandant John Ritcliie and the commandant of Tampico j and, 



174 

in reply to your instructions of the 20th ult. requiring protectiont' 
to the citizens of the United States engaged in commerce with' 
that port, have to state, that the Shark and two of the small schoon- 
ers have been sent to the Gulf of Mexico, to afford the protec- 
tion required. 

This, under existing circumstances, is all the force which, att 
present, can be sent on that service. The sickly condition off 
some of the vessels that have returned to the United Stales, which \ 
has caused them to be placed under quarantine; the want of re- 
pairs in others ; the revival of p^^acy about Cuba and elsevvhero, 
and the reduced state of my squadron, from these and other caus- - 
es, prevent my affording, with the means at my disposal, as niuch*i 
protection to the citizens of the United States engaged in coin- 
jnercial pursuits within the limits of my command, as I couli' 
■\vishrf 

I have the honor to be. 

With great respect, &c. 

DAVID POUTER. 
Hon. Seguetary of thk !Navy. 

8th. Commodore Porter's answer to, and explanation of the va- 
rious rumours and complaints, that had been conununicated to 
him, through the department, of piracies in the West-Indies, &c. 

Washington', Jugiat 10, 1824, 
Siu : I have the honor to acknowledge the receipt of your let- 
ter of' the 29th ult. enclosing a copy of a letter from W. Neilsoi;, 
President of the American Insurance Company of New York, 
complaining of the capture of the Mercator, near the port of Ma- 
tanzas, when some of otir vess^'ls of war were stationed there, 
reflecting on the government of Cuba for permitting the seizing 
of " numerous and valuable vessels and cargoes, sailing under our 
flag," charging it with connivance or imbecility, and justifying 
the government for taking decisive measures for the protection" 
of our trade. I have also received your letter enclosing an ap- 
plication from the merchants of Matanzas, for further protection 
to our commerce in that port, as well as your letter of the 28ih 
July, enclosing a copy of a letter from the master of the brig 
John, of Newport, recounting the circumstance of the robbery of 
that vessel near the harbor of Matanz;is, asserting that there 
were no United States vessels on that side of the Island of Cuba, 
and stating that there had been six captures betwe.en Matanzas 
and Havanna. In the various letters accompanying these state- 
ments, it is enjoined on me to use my efforts, and n»ake such dis- .2 
position of the force under my command, as will render piratical ■ 
aggressions of this description, less frequent, if it is possible. 
The whole history of my operations, in conjunction with the au- 
thorities of Cuba, against the pirates, renders any defence of my 
conduct, or the conduct of tiiose under my command, against 
any imputations of ne'^lect, from any quarter, unnecessary; as it 
is well known to the Department that we have been devoted to 
the inglorious service, sacrificing health, comfort, and personal 



175 

jr»terest9, for the sole object of suppressing a system of long con- 
tinuance, the existence of which was disgraceful to the civilized 
nations whose citizens and subjects were victims to it, and which 
the peculiar state of the government of Cuba, arising from the 
various changes in Spain, and the numerous facilities to piracy, 
arising from the nature of the population of the island, and va- 
rious other causes originating in the suppression of the slave 
trade, and progress of the South American revolutions, put it 
out of the power of the local authorities to suppress, without aid 
tVoin other quarters ; which was no sooner obtained, by our pres- 
ence, than the most zealous co-operation was commenced on the 
part of the government of Cuba, wiiich has ever since continued ; 
and has changed, entirely, the character of piracy from the bloody 
and remorseless manner in which it was conducted, to simply 
plundering of property; and the means from large cruising ves- 
sels, to open boats. This latter mode of carrying on their de- 
predations, renders it extremely difficult to detect them, and is 
calculated to baffle the etiorts of the most vigilant, from tlie ease- 
with which they are enabled to possess themselves of boats along 
the Coast of Cuba, the certainty of being enabled to escape to 
the unsettled coasts of the island, and the certainty, for some 
hours, in the early part of every day, that mercha.nt vessels jnay 
be found, becalmed, near the land. 

Nolliing but resistance, on the part of those who call on us for 
protection, can put down the present system ; and from the small 
force employed by them, the mere sliow of resistance, ifj a few" 
instances, is all that is required. We have seen it stated, that 
one of the vessels robbed, was taken possession of by a boat with 
seven men, and plundered, the crew beaten, and confined below. 
Surely, tir, blame should not be attached to us, or to the govcrn- 
I menl of CJuba, for the dastardly conduct of those w'ho, with the 
nnist ordinary means of defence, which every merchant vessel 
aftiuds, could permit such an act: as well might this, or any 
other government, be charged with imbecility, and its officers 
with neglect, for not detecting every highway robber, housebreak- 
er, incendiary, or counterfeit. The charge of imbecility must 
rest on those who fail to defend tliemselves against their petty 
aggressions ; and the cause is attributable, almost entirely, to th« 
parsimony of the owners, who fail to furnish a few weapons t» 
put into the hands of the crew of vessels destiaed to Cuba. 

Those robberies are committed most frequently by the per- 
sons employed in loading the vessels, who are well acquainted 
with their destitution of fire arms at the time of sailing. 

i have taken the liberty of enclosing you reports from lieuten- 
ant Mcintosh, the commandant of Thompson's Island, by ^<^hich 
you will perceive that every vigilance has been exercised by him 
in endeavouring to recapture the vessels taken, and puaish the 
offenders; that at the very time that Wm. Norris states that no 
United States' vessels were on the north side of Cuba, the Ter- 
rier, lieu t. Paine, and Diableta, were cruizing there ; and I have 
also to state, that the Ferret, lieut. Farragut, was on that coast 
land hu4 been, daily, (^untii a f<:\v days previous^ employed ia 



ir6 

giving convoy in and out of the harbour, sometimes with his ves- 
sel, and sometimes with his small boats. I have further to state,: 
that the John Adams, corvette, the brig Spai^i, the schooner 
Grampus, the Jackall, VVeazel, and the Beagle, have, a short time i 
since the dare of Mr. Norris's letter, all visited the coasts and i 
ports of Cuba, zealously employed in the protection of our com- 1 
merce, in the performance of which duty, l regret to state, thati 
lieutenants Montgomery and Gumming, vvitli several olliers, have i 
fallen victims. 

The reports of captain Dallas, lieutenant-commandants New- 
ton, Sloat, Lee, and Zantzinger, and acting-lieutenant Farragut, : 
with which you lu'.ve already been made acquainted, will show ^' 
the arduous duties they have performed ; and the report of acting- 
lieutenant Pinkham, the successor of lieutenant-commandant 
Montgomery, wiii show the result of his arduous, useful, andi 
disastrous cruize. There is, at this time, on the Coast of Cuba,; 
and on their way there, the ships Hornet and Decoy, the schoon- 
ers Shark, Wild Cat, and Terrier, and six barges ; and, in a short 
time, the force will be augmented by the departure of others oft 
the schooners, large and small. The charge, then, or intimation 
in any shape, of neglect, on the part of myself or officers, to the ■ 
interest of the merchants, who have no feeling but for their own 
pecuniary concerns, is, as you perceive, unfounded. It is true, 
that, warned by the dreadful mortality af last year, and by ap- 
proaching disease, I left the West-Indies, and ordered home the 
greater part of the force under my command ; and the only 
cause of regret to me now is, that I did not remove them earlier, , 
by which many valuable lives would have been saved; and that 
there should be a necessity for their return at this unfavourable 
season, which will undoubtedly cause the death of more. 

I beg you to excuse my goinu; so much into detail, but as the 
frequent applications to the Department, from the merchants 
concerned in the Matanzas trade, for protection, might indue* • 
the belief of neglect on my part, I have felt that this explana- 
tion is necessary. 

I cannot conceal to you, however, my mortification at theii 
conduct, after the devotion we have all shown to thc\r particular 
interests, which entitled us to their warmest gratitude. 
I have the honor to be. 

With great respect. 

Your obedient servant. 
D. PORTER. 
Hon. Samuel L. Southard, 

Secretary of the J\^avy. 

[This correspondence was preceded and followed by an infinity 
of orders in the form as well of circulars as of detailed instruc- 
tions, dated at Washington, and running through the months of 
July, August and September, 18:^4, from commodore Porter to 
tlie officers of the squadron, on tlie various services in the West- 
Indies, Gulf of Mexico, and in the ports of the United States, 
To set out these at large, would swell the volume with details 



177 

that could afford no adequate illustration of the case. Suffice it 
to say, that these orders exhibit commodore Porter, whilst he re- 
mained in the United States, during that summer, as in the effi- 
cient and active command of the squadron, and superintending 
and directing all the details of the service, incident to the nature 
of his command. Early in August he had ordered captain Dal- 
las to proceed to the West-Indies in the Corvette John Adams, 
as soon as she could be got ready for sea ; and it is presumed the 
order would have been executed, if she had been ready for sea, 
before commodore Porter received the order to proceed to Thomp- 
son's Island himself, in the same vessel : upon receiving whicli, 
he ordered captain Dallas to drop down to New Castle, ready to 
receive him on board, and to put to sea, on the shortest notice.]] 

9th. Extract of a letter from C. Hay, esq. chief clerk of the 
JVrtff/ Department, to commodore Porter, September 11, 1824: 

" I have heard from the Secretary, who has ordered the Coti- 
stellation to befitted fur you, and authorized me to tell you so. 
But as she is not officialUj ordered to you as yet, I would not 
interfere with her. However, of this you are tke best judge. — 
Your letters about money have been received, and will be sub- 
mitted to the Secretary on his return; in the mean time, Thorn- 
ton can supply you with what is necessary. The Secretary 
is very anx'wus, that you should be out again, with as little de- 
lay as possible, and will no doubt facilitate your preparatory 
operatinns.^' 

10th. Extract from the report of the Secretary of the ^avy, 
December 1, 1824, accompanying the PresidenVs message, of De- 
cemberT, 1824: 

"The manner in vvhicli the force assigned to the protection Qf 
our commerce, and the suppression of piracy in the West-Indies, 
has been employed, will be seen by the annexed letters and re- 
ports of commodore Porter, marked C. The activity, zeal, and 
enterprize of our olficers, have cimtinued to command approba- 
tion. M the vesfiels have been kept uniformly and busily em- 
ployed, where the danger was believed to be the gi^eatest, except 
for short periods, when the commaiider supposed it necessary that 
they should return to the United States, to receive provisions, 
repairs, and men, and for other objects essenfial to their health, 
comfort, and efficiency. Ko complaints have reached this depart- 
ment, of injury from privateers of Porto Rico, or other Spanish 
possessions, nor have our cruizcrs found any violating our rights. 
A few small piratical vessels, and some boats, have been taken, 
end establishments broken up, and much salutary protection af- 
forded to our commerce. The force employed, however, has been 
too small, constantly to watch every part of a coast, so extqnsive 
as that of the islands and shores of the Gulf of Mexico, and some 
piratical depredations have therefore been committed ; but they 
are -of a character, though, perhaps, not less bloody and fatal to 

1^ 



17& 

the sufferers, yet differing widely from those which first excited 
the sympathy of the public, and exertions of the government." 

[See also the extract from the same report cited, ante, p. 81, 
No. 8 ; being the passage immediately following the above.3 

7. As to the utility and necessity of adding, to the squadron 
under Com. P's command, a ship of the line or frigate of a lar^e 
class; and the reason he had to expect that such would have 
been fitted out for the service, before he returned to the West 
India station, in the summer of }824, the following documents 
were cited. 

1st. Com. P^s original representations of the iitiliti/ and neces- 
sity of the measure, in ticn letters, uu-itten from Tliompsmi'^s Is- 
land, on the lOth and 22rf May, 1823, and communicated by the 
President to Congress, with his message of Dec. 2, 1823. 

Extract from the letter of the lOthMciy. 

*'I beg you, Sir, to take into consideration the uncomfortable 
situation of myself and those with me, and, as early as may be 
possible, send me a frigate or a large sloop of war fitted for the 
climate, or I shall otherwise, most reluctiiiitly, on account of 
health, be compelled to relinquish a service which 1 set my heart 
on accomplishing — ^the total suppression of Piracy in the West 
Indies and Gulf of Mexico; it has been effected about the north 
side of Cuba, and, with suitable means, I Ijave no doubt of effect- 
ing it elsewhere." 

Extract from the letter of the 22d May. 

** I beg, Sir, that our situation may be taken into consideration, 
and that some means may be spcetlily employed to ameliorate it. 
The principal thing wanting, is a large vessel, and the aid and 
comforts which she would afford : At present I have no place tOj 
shelter me but the awningof this small vessel, fthe Sea Gull.) 
I cannot obtain hands enough for my use to man a boat. I have 
no comforts whatever, and 1 find my health gradually sinking. 
I would be the last to complain without cause : but the rainy and 
sickly season is now coming on, and 1 should fail in my duty, 
were I not to acquaint you with our true situation." 

2d. Com. Rodgers'' report of the result of his mission to en- 
quire into the causes of the sickness, S^'c. at Thompson''s Island ; 
and to suggest remedial measures, Sfc. J\fov. 24, 1823. 

^EXTRACT.; 

" Without further remark on this interesting subject, permit 
me, sir, to observe, thst, whatever objections may be made to the 
Island as a rendezvous, in its present unimproved and uncultiva- 
ted state, even these may be rendered harmless, or, at least, 
measurably unimportant, by substituting the following descrip- 
-tion of force, for that now employed in the protection ot our com- 
merce in the West Indies and Gulf of Mexico : 



179 

*'Th^ Independence 74, depriving her of her bwer deck guns, 
and giving her a crew of 450 seamen, ordinary seamen, boys^ 
and marines, with an extra complement of commission officers, and 
double the usual number of midshipmen ; the sloops of war-John 
Adams, Hornet, and such other vessel of that class as can, from 
time to time, be spared from other service ; the brig Spark, and 
schooners Grampus, Porpoise, and Wild Cat, and five or six bar- 
ges, such as are now at TJiompson's Island, for occasional service." 

3d, The Secretary of the JVavifs rsport, Dec. 1, 1823, nccom- 
funyingthe PresidenVs message to Congress of Dec. 2, 1823. 

('EXTRACT.; 

"For the protection of Commerce, and the suppression of pi- 
racy in the Western Atlantic and Gulf of Mexico, it is propo- 
ed, in the ensuing yeaj", to continue Thompson's Island as the 
.•station for the vessels employed in those objects; to place there 
a ship of the line, aimed and manned as a frigate, for which ptir- 
pose the Independence is well fitted; and to attach to the com- 
mand the John xAdams and Hornet, and one other sloop of war, 
• with four of the larger schooners, the Grampus, Porpoise, Shark, 
and Spiuli, one of the smaller schooners and the barges. This 
force is competent to protect all our interests. The ship of the 
line, placed in a proper position, will afford comfortable accom- 
ruodations to those who are obliged to remain at the station, and 
prevent tlie necessity of intercourse with the Island, when dan- 
ger is suspected. Tiio cruises of the other vessels, except those 
V'liicii visit the coast of Africa, may be limited to four, five, or six 
weeks, and on their return, their crews may be exchanged for 
others, wlio, during that time, have been stationary. By these 
ineaiis,^aiul a proper attention to cleanliness, both in the men 
and the vessels, and avoiding intercourse with places known tu 
be sickly, the healtli of all will probably be preserved. For the 
proper execution of such a system, full reliance may be placed 
in our olhcers. The island itself, by clearing, draining, and cul- 
tivating, will, after a time, probably become more healthful." 

4th. Additional instructions from the Secretary of the JVavy 
to Cuvi. Forter, Ike. 1823. 

(^EXTRACT.; 

" It is tiie intention of the Department to increase the force 
under your command, as soon as it can be effected: To this end 
the frigate Congress will, after her arrival in the United Slates, 
be ordered to ji)in you, and in the course of the spring, one or 
more sloops of war will be added to those already with you." 

5th. Extract of a letter from the Secretary of the JSTavy to 
commodore Forter, May 17, 1824. 

"Congress has not, until within a few days, passed an appro- 
priation-law for the current year. This will account to you for 
one or two of the drafts of Purser Thornton not havin<r been hon- 
-ored, and for tlve delay tu preparing the vessels to join you. It 



180 

was impossible, without funds, to fit out the Hornet, or the Por- 
poise, and to prepare a larger vessel. 

There will be now as much activity as possible; but it is feared 
one cannot be prepared in time to reach you, before i\\e sickly 
season commences. It shall, however, be done if possible." 

6th. Do. from same to same, May 31, 1824. 

*' You have now under your command, the John Adams, Hor- 
net, Spark, Porpoise, Shark, Sea-GuU, Decoy, and seven small 
schooners, — in all, fourteen vessels, exclusive of the barges. I 
did intend to send a larger vessel than any of them, but the amount 
of the appropriation, and the time it was made, will probably put 
it out of my power. It shall still, however, be done, if it can be 
accomplished." 

7th. Extracts of a letter from coynmodore Porter to the Secre- 
tary of the JVavy, dated Washington, Jlugnst 11, 1824: 

" Understanding it to be the intention of the govcrnmejit, to 
give me a ship suited to my rank in the service, I I»ave ordered 
the John Adams to proceed to the West-Indies, and thence to the 
Gulf of Mexico, for the protection of our commerce, where her 
services are much wanted. 

"Should a frigate be selected, I beg leave to state, that it wiii 
be most agreeable to me, that there should be no commander ap- 
pointed to her, as I should wish the particular and personal com-, 
mand to be vested in myself alone." 

"I shall be glad to be apprised as early as possible, of the ship 
intended for me, that I may give my personal attention to her 
outJUs.^^ 

8th. The above-cited letter from C. Ilay, esq. chief clerk, to 
com. Porter, of September 11,1824; saying that he was autho- 
rized by the Secretary to tell him ('Com. Porter) that the frigate 
Constellation, had been ordered to he fitted for him. 

9th. Extract of a letter from the Secretary of the A^avij to 
Com. Porter: 

"Navy Department, I4th Oct. 1824, 

*'Sir: It is deemed expedient by the executive, that you pro- 
ceed, as speedily as possible, to your station in the John Mams : 
that, by your presence there, the most efficient protection may be 
afforded to our commerce, and you may be ready to meet any 
contingencies which occur. 

" The Constellation tvill be fitted for sea and sent to you as 
speedily as possible. 

" I enclose, by order of the President, an extract from a letter 
lately received from the island of Cuba; you will consider it con- 
fidential, and to be used for your information, so far as you may 
find it useful. 

"With the Constellation, directions will be sent for you to pro- 
ceed to the island of Hayti, there to accomplish certain objects 



181 ^ 

which will be particularly explained to you and instructions gi- 
ven." 

The residue of the letter relates to matters foreign to the 
present subject. 

10th. Refer to the Secretary's aforesaid letter of October 21, 
1824, (annexed to the interrogatories to Mr. Monroe, ante, p. 
159,) in which the Secretary says, " you are aware of the inten- 
tion to send the Constellation to that station as soon as she can 
conveniently be prepared.'' 

In obedience to these peremptory orders, commodore Porter 
proceeded to his station, in the Jolin Adams: which continued 
to be his flag ship ; his expectations of a ship of the line or a fri- 
gate, never having been realized. 

The evidence in the case, being concluded, wc now lay before 
the reader the preliminary argument, upon the sufficiency of the 
'2d charge and the several specifications of the same. It will bo 
recollected that, on the 2d day of the court, (^Friday, July 8,) 
commodore Porter entered his plea, of ♦* not guilty," to the se- 
veral charges and specifications, "under a protest against their 
sufficiency ; and reserving to himself the right, in the progress 
of the trial, and in due time, of excepting to the sanie ; as desig- 
nating no oftence known to any law enacted for the government 
of the Navy ; as vague and indefinite ; and altogether insufficient 
to put him upon his trial for the matters therein charged, or sup 
posed to be charged." (Ante, p. 9 — 10.) 

This protest and reservation of exceptions extended, in terms, 
to both charges : but on the Wednesday following, (July 13,) after 
all the evidence, in support of the Istcharge, had been announced 
to be concluded, the counsel for commodore Porter, delivered a 
jwritten summary o( four specific exceptions, applying to the 2d 
I charge, and the specifications of the same exclusively: fante, 
p. 3G,) which on the Friday following, ('July 15,) were supported 
by reasons more at large ; of which the following notes were de- 
livered in.^'o) This was all done before the examination of any 
evidence under the 2d charge; with a view to obtain the deci- 
,sion of the court, upon a preliminary exception to the sulficienc/ 
of that charge and its specifications. Why that course was aban- 
doned, has been already stated. Ante, p. 39 — 44. 

faj Perhaps some slight variations, in the turn of expression, in a few 
instances, mav have arisen, in the course of transcribing- and correcting, from 
an extremely rough first draugiit, between the copy of these notes, as here 
printed, and that delivered in to the court-martial. Tliese,if they exist, how- 
ever immaterial, were intended to have been corrected by a comparison and 
revision of the two copies. Being disappointed of an opportunity to do so, 
these verbal differences must remain : with the assurance that they are whol- 
ly immaterial to the argument ; and change not the meaning, in any uistance. 



IS2 



JVotes of the principal heads of argument and aathoritij, in au/;- 
port of the objections taken htj the counsel of Com. Porter, toi 
the -Id charge and the specifications of the same. 

Tfie counsel is well aware how much out of place, before a > 
couit martial, are the nice and abstruse subtleties, and the merely ;, 
technical rules, peculiar to some branches of practice in the courts • 
of couimon law. He will, therefore, implicitly follow the advice t 
of a learned civilian, who has made military jurisprudence, and : 
the analogous principles and pracli.ce of civil and criminii! judir 
cature, the subject of an elaborate, practical, and useful es-ay; 
and who very prudently and pr()[)erlv rccommeiids to counselj en- 
gaged in tlic conduct of a defence before a court maitia!, to avoid 
every topic calculated to perplex and embarrass the judgment of 
■gentlemen not professionally conversant with the law, by " forcing^ . 
the discordant and unsuitable axlnms and rules of the civil courts, 
upon a military tribunal." Accordingly, no "rules or a:.vloins of 
the civil courts'''' are adverted to upon this occasion, but such as 
have been distinctly invoked to the practice of "military tribu* , 
nals;" or such as, bcit.c; founded in the immutable principles of 
right and justice, are necessarily common to both ; and cannot 
be dispensed with, by either, without consigning the subjects of 
its jurisdiction to an untiualirii^d tyranny. The truth is, there is 
no essential difierence, either in the i<irn\ of procedure, or in the 
principles, by which both arc guided in the administration of o'i- 
m»7«/ justice. The course o! proceeding, in British courts mar- 
tial, is said to assimilate liiiire nearly to tiials for hi}^h treason, m 
the courts of common law: because, prison^'rs, tried for that critne, 
have greater privileges allinved then» by statute, than what arc al- 
lowed in criiuiual prosecuiiotis for other oiVences. (a). All the 
forms of procedure in the civil courts, in the department of cri- 
minal jndicaiare, are siiuple and concise: they are clear of the 
technical subtleties, and of the nice and artificial distinctioui, 
which have residted from the abf-lruse and complicateil rules of 
property, and tlie perplexed dialectics of special pleading: they 
arc the result, of great sagacity, long experience, and a practic:d 
insight of humao aftairs; cxeited in the couipilafion of a system 
of rules, necessary to the protection of propeity, life and reputa- 
tion, aijalnst the irregular, capricious, or viiidlctive action ol pow- 
er. 'Tis beyoiul the reach of human sagacity, to institute ordi- 
i^cst any system, which is to act with infalii')le and undcviating 
truth and accuracy, in all tho diver.-ified occasions of practice. 
<Joiiseq!iently, iu some particular instances, the forms, with wliiclf 
iiuuian rights ar^ icncrd in and guarded, nuiy rather inconvenient- 
ly fetter and retard the march of substantia I juitif^.e : these forms 
arc never'';"!e«s wholesome and necessary; — and *tis better to 
endure somr partial incnnveniencies, than encroach upon the con- 
spiciioLio u^id well aea?ied land-marks intended, as impassable 

fo ) MrA.rtlt>ur (4lh kl Lor ) B I. ch n s 1. p. '^S2, 



183 

baViitis afiBinst the oppressions of tlie mighty upon the weak. 
And of all the modes, in which might can demonstrate its cupidi- 
ty or its wrath, to the danger of individual security and justice ; 
and against which every free community is the most provident, 
and circumspect in devising, and most tenacious in maintaining 
wholesome checks and restraints, is that of high seated pov.er 
bearing down, on its victim, with all the weight and circumstance 
of ofRcial splendor and influence, in a state-proseculion. 

A vulgar error has sometimes prevailed, to the great disparage- 
ment of the military character, that a militaiy establishment must 
necessarily be coniposed of men, who have voluntarily surren- 
dered all the essential rights of citizens, and who have abandoned 
every (hiiig sacretl and dear in life and honor, to the uncontrol- , 
led vviil and unregulated power of the government. Againstsuch 
an absurdity, it would be s\iperHiuuis to contend, before an 
intelligent and experienced tribunal, composed of gentlemen who 
have been disciplined in the rights and duties, alike of civil and 
of military life: as every man, aspiring to wield the arms of an 
enlightened Republic, must be; or sink into the pernicious and 
degraded instrument of usurpation and despotism. 

Tlien it is one of the fundamental and uncompromising max- 
ims, as well of martial, as of every other human law, that it should 
define, before hand, and with precision, the offences which it 
punishes : the only alternative is to leave it to the absolute discre- 
tion of every successive court martial, to determine, without any 
iixed rule or guide, upon each particular accusation, whether the 
act charged be one which the law either designed Br ought to have 
punished. This alternative is universally held to be of the very 
essence of tyranny ; an<l utterly incompatible with any sound 
principle, by which either military discipline and police are main- 
tained, i\v the forms of civil government instituted. Wholesome 
restraints of the ceaseless tendency of power to excess and to ir- 
regular exertions of its force, and well defined rules, by which 
individuals may certainly know what actions are enjoined or for- 
bidden, are just as necessary to the conservation of the military, 
as of tlie social virtues. Once beat down the barriers, by which 
the essential rights of the soldier arc protected against the in^s 
sion of vindictive or capricioas power, and every tie of snbortli 
nation, but that of Uute force, is dissolved : the generosity o'i 
soul that enobles valour, and gives all its moral elevation and dig- 
nity to the military spirit, is extin^ished : his rapid degeneracy 
makes him no longer formidable to any, but to the state, whici) 
has degraded and debased him. No government, whose institu- 
tions bear the remotest afiinity to our own, has ever acted upon 
the notion, that persons in military capacities were to have their 
relative rights and privileges, defined or guarded by any less fixed, 
certain, known and precise laws and rules of conduct, than their 
^fellow citizens, in civil capacities: or that criminal justice was 
to be administered, in military courts, with any less regard to the; 
fundamental principles of legal justice, than in other courts of 
judicature. Tlje rights and privileges of the Janissary are just 
as well defined in theory, atid resnected in practice, as those ©f any 



184 

other of the subjects of Turkey: where all are equally exposed i 
to the arbitrary caprices of a power; which is despotic only be-' 
cause it is of indefinite extent, and vague and uncertain in its s 
limitations, and in its rules of action. These same Jannissarles, 
at once the instruments and the terror of the despotism they up- 
hold, are but the type of what every military establishment must 1 
become, when placed out of the pale of tl)e general law, by which i 
the relative rights and duties of individuals are defined ; and i 
which determines, by fixed, known and precise rules, the offences ■ 
%vhich may draw down the penalties of vindictive justice. 

Accordingly all the regular governments of modern times, which 
have made much progress in civilization and improvement, have 
been at great pains to digest codes, for their fleets and armies ; 
in which all military crimes and punishments have been enume- 
rated and defined, with more or less of precision. ('aj In Britain, , 
it has been, for a century and an half, the subject of anxious and [ 
minute legislation, in successive parliaments; which has resalted 
in a compilation of criminal law, for their navy.as elaborate,and, 
perhaps, more systematic and complete, in its kind, than any 
they have, hitherto, framed for the community at large. The 
British articles of war, both military and naval, have been re- 
spectively adopted by Congress; with such modifications as were 
thought necessary to fit them to the peculiar organization of our 
own establishments: and it must, in candor, be confessed, that 
our alterations of the British system have not been uniformly for 
the better: but, in one or two particular instances, ^presently to 
be remarked uponj decidedly for the worse. 

Of the forty-two articles adopted by the act of Congress, for 
the government of the navy, thirty ffrom the 3d to the 5i2d in- 
clusivej constitute what may be called the criminal code of the 
navy : in which all the offences, cognizable by a naval court-mar- 
tial, are enumerated and defined ; the appropriate punishments, 
for each kind and degree of offence, prescribed ;— a tribunal for 
the trial of them constituted ; and a few of the most essential 
and indispensable forms of procedure, laid down. 

Then the first and radical question, in every prosecution before 
a court-martial, is whether the^matter of the accusation be cog- 
nizable by the court, as constituting any oft'ence, enumerated and , 
defined in the given code of criminal law; there the offence is 
to be found, or no where : by that authority it is to be punished, 
or by none. 

In Britain, 'tis said, that '• the crimes, cognizable by courts 

(«) NoTK. — So inanifest is the expediency, and hidlspensable the justice of 
cxtendiiisj tonillitary men and to military tribunals all those essential and gen- 
erally received principles and forms of judicial justice, which are supposed 
to constitute the sanctions of property, lite and reputation, to the citizens at 
larj^-e ; that tlie practice is said to prevail in many of the foreign services, on 
the continent of Europe, of extending to soldiers the privilege of being tried 
by their peers : for which purpose, some of the same rank with the prisoner, 
from officers of tlie higiicst rank to privates, are admitted as members of 
coiuts-marlial. This practice has, it seems, been recommended, but, for very 
satisfactory rcasojis, successfully opppsed, in the British service. Adye, cli, -2. 
p. 43-4. 



185 

martial, are pointed out by the mutiny act and articles of war ; 
which every military man is or ought to be acquainted with '^(a) 
and again, that " martial law is laid down in so plain and simple 
a manner, that every military man is or ought to be acquainted 
with what are thereby deemed crimes. "(6^ 'Tis further said not 
to be necessary to refer, in the charge, to the particular article 
of war supposed to be violated; because the specification of the 
criminal act itself is sufficient intimation to the prisoner;" who 
may " always dispute its relevancy, and call upon the prosecu- 
tion to show in what vespect, it falls under the prohibitions of 
that law.''''(c) 

A favorite idea has prevailed among military men, and with 
some military tribunals, — that a court-martial is not only a 
solemn tribunal of criminal judicature, but also, a court of honor; 
privileged to exert a sort of censorial power over the minor 
morals ot the profession : and, as such, to take cognizance 
of certain inunoralities and indecorums, or of certain de- 
partures from the more delicate and refined points of honor, — 
indispensable to the character and conduct of an accomplished 
officer and gentleman ; but not prohibited or condemned by any 
positive law. This idea, to a certain extent, is not without some 
support from reason, authority and practice: but, to the extent 
here stated, is certainly erroneous ; and contrary to the best es- 
tablished principles and precedents. 'Tis true to any extent, 
only because the military code has, hy positive enactment, QXicxul- 
ed the judicial cognizance of its courts, — to more minute trans- 
gressions of private morals, than are cognizable in other courts: 
not that the military, any more than the civil courts, have any 
authority to try or to punish any act, not expressly constituted 
an offence, punishable under some fixed and known law. For 
instance, the Britisli articles of war, both naval and military, 
make " scaHdalmis infamous beUa.v\o\xv, such as is unbecoming 
the character of an otiicer and a gentleman," an offence punisha- 
ble by dismission from the service :(d) and this article has under- 
gone a version, in its adoption into our military code, extremely 
disadvantageous to its precision, and to every other commenda- 
ble quality of a penal law: for, there, it is stripped of all the 
aggravations by which the offence is characterised in the British 
articles; as "behaving in a scandalous, infamous, cruel, oppres- 
sive ur fraudulent manlier, unbecoming the character,'^'' &c. afld 
marks out, for reprobation, and for the same sort and degree of 
punishment, as the British articles, — conduct, simply charac- 
terised as, " unbecoming an officer and a gentleman :"(>j with- 
out specifying how or (o what degree it must be unbecoming; 
whether, to his characitir, moral or professional ; or to his person, 
or his manners. This article is not to be found, in either of its 

C«) Adye, (7th ed. Lon.) pt. 1, ch. 2, p. 62. 
{b) id. pt. 2, ch. 5, p. 225. 
(c) Tytler, (,3d ed. Lon.) ch. 5, s. 1 . p- 216-ir. 
(rf) Tytler, p. 212. 1 iMcArthur, app. No. 1, art. 33, p. 335. 
(c) Vide, Rules and articles for the government of tlie arrm'eJi of the Unit- 
ed States, ai't. 83. Macomb, p. 63, 241, 
24 



186 

forms, among our naval articles of war; but the third of these, 
corresponding to the second of the British naval articles, enume 
rates " oppression, cruelty, fraud, profane swearing, drunkenness, 
and other scandalouft conduct, tending to the destruction oi good 
morals,^^ as among the offences punishable by a court-martial. fa^ 

Now here, it must be confessed, is ample scope for the exercise 
of a sound discretion: the coyrt being called upon to decide, in 
one case, what acts are scandalous, infamous, Sfc. in another, what 
are " unbecoming an officer and a gentleman ;" in another, what 
immoralities come under the denomination of " other scandalous 
conduct tending to the destruction of good morals;*' and whether 
the acts, specified and proved under such a charge, equal or ex- 
ceed, in scandalousness and turpitude, the immediately preced- 
ing enumeration of "oppression, cruelty, fraud," &,c. Still 'tis 
nothing more than a sound discretion, acting under the authority 
and by the express mandate of the law : not an unlimited discre- 
tion to legislate new offences into existence. When the nature 
and degree of the oflience are once ascertained by the application 
of that sound discretion to the facts of the case; — and these facts 
are found to bring tlie case within the operation of the law, — 'tis 
then an offence as emphatically embraced within the purview of 
the law, and as positively prohibited, as if it had been therein 
designated by name, or by the most specific description. After 
all, it is nothing more in principle, than the ordifiary discretion 
of every court of law, to construe, interpret or expound, the ob- 
scure, perplexed and doubtful terms of general statutes. There 
is also vested, in courts-martial, an extensive discretion, in the 
application of ojMonal punishments to various transgressions. 
So the civil courts exercise a wide discretion over both the kind 
and the degree of punishment, appropriated to various misdcmean 
ors : a,s fines from one cent, to any indefinite amount ; imprison 
ment for an hour, for years, or for life ; pillory, &c. — and of these, 
in many instances, they have the option of any one or more. 

In short, the exercise of this sound, legal discretion, by wliat- 
ever court, civil or military, — and to whatever degree, is nothing 
more or less than tiie judicial exposition, or the judicial execution 
of a positive law: and leaves the conclusion, untouched, that no 
offence is cognizable by a court-martial, but what is prohibited 
and punished, by some article of the military code, under the 
sole authority of which the court acts : and, conse(|uently, that 
every accusation or charge must set out, in terms, an offence, so 
prohibited and punished ; or be excluded from the cognizance 
and jurisdiction of the court. 

The defect of power, in a court-martial, to erect itself into a 
court of honor, and, as such, to assume censorial jurisdiction over 
such breaches of good manners, or good morals, or of decorum 
and gentlemanly demeanour, as are not made positively unlawful 
by the articles of war, or some statute, is strikingly illustrated 
by tlxe case of a British officer, tried at the Cape of Good Hope, 

(fl) Vide, Laws U S, p. 351, ch. 1 87, art. 3. 1 M'Artliur, app. No, 1, art. 2. 
p. 32^.. 



187 

under a charge of "sciiulalous, infamous coiuluct, unbecoming 
the character of an officer and a gentleman;'' exemplified by the 
fact, of his having first made a present of a horse to a general 
officer, and then sent in a charge of J 600 for the same horse. 
Upon which, the court acquitted him of the graver part of the 
charge, " scandalous infamous behaviour;" but found him gudty of 
mean, dishonourable and ungentlemanly conduct ; for which they 
sentenced him to six month's suspension. Yet, upon an appeal, 
to the king in council, it was solemnly decided, that the court 
had nojvunsdiction over this inferior immorality, of mean, shab- 
by conduct: but that, having acquitted him of the legal part of 
the charge, he stood acquitted alt<)gether.(^; 

The point may, therefore, be tal.en as clearly established ; that 
a court-uiartial, having no jurisdiction but one limited and de- 
fined, in respect both of persons and offences, can take no cog- 
nizance of any impropriety of word or deed, but such as is pro- 
hibited and punished by positive law: and can exercise no dis- 
cretion, in determining either the legal or moral character of such 
improprietv, any further, than simply to decide, from facts and 
circumstances, whether it bean uftence of the same species and 
degree, as that de«cribed and prohibited by the law. 

This brings us to the consideration of the form and substance 
of the accusation, or charge: in order to determine, 1st. whether 
any oft'ence, cognizable bv the court, be set out, in terms : and, 
2dly, if there be, then whether set forth, in such manner and 
form, and with such specifications, as, according to the establish- 
ed law and practice of courts-martial, may justify calling upoa 
the prisoner to answer. . i • i ., 

A more particular examination of the terms, in which the 
charge and specifications, now objected to, are conceived, may be 
usefullv preceded by a succinct analysis of the rules, by which 
the form of such accusations is prescribed. These rules shall be 
deduced from the most approved writers and authorities, upon 
mai'tiai law alone: all of whom concur, with undeviating unani- 
mitv, in the terms of the rules now to be cited: and rival each 
other in the amplifications and illustrations, by which the utility 
and necessity of a strict observance of them arc enforced. 

Then there must be a certciintij of the offence committed : it 
must be set out in such terms, as bring it unequivocally and clear- 
ly within the law or statute by which it is made punishable: 
in some instances, even words, synonipnous with those of 
the article prohibiting the oft'ence, do not suffice ; but the very 
words of the law must be used ; as in case of mutiny, &c. 
and the special manner of the whole fact must be set forth, 
with certainty, in the specifications. All the circumstances of 
the time, place and manner of the acts charged, must be minutely 
described. If disrespectful, contemptuous, or mutinous words 
be imputed to him,~the very words must be specified : and, m 
the proof of any acts or words charged against the prisoner, it 
IS not enough for a witness to say, that acts or words of such or 

(?;) 2 M' Arthur, clij 8. p. 297-8, 



188 

such ejfect, were done or spoken; but he must describe the very 
acts, and prove the very words. The more general and vague 
the description of the otlence in the article, by which it is punish- 
ed, the more particular and minute, must be the specifications, 
in the accusation, of the facts and circumstances inten«led to 
be proved in support of it. 'Tisagrepd, on all hands, that there 
must be the same precision and the same mifiuteness ('and, in 
many instances, greater minutenessj as in indictnmits, in the ci- 
vil courts. One author, Mr. Tytler, a Scottish advocate, and of 
course a civilian, would rather compare it to a libel fwhich is 
Cfjuivalent in the tribunals of the civil or Roman law, to an in- 
dictment or criminal information at common law) because the 
libel deals in more minute and ditTuse specifications of the facts 
and circumstances charged : and 'tis certain that a court-martial 
more resembles a tribunal of the civil law, than of the common 
law ; since the members unite, in their own persons, tlie character 
both of judge and juror.faj 

The rationale of the rule is the same in all courts: which is 
that the prisoner, bein» thus minutely informed under what law, 
for what oJ«?^r?, and of what /acfs he "is accused, in-ay duly prepare 
himself for his trial. In the same spirit, 'tis rFi;.iired that he be 
furnished with a copy of the chars:i's and specijlcations, and the 
names and descriptions of the iciinesses, for tl;e prosecution, in 
due time before his trial. The object of this rule is, not only that 
he may be prepared to meet the matter of the charge; but to 
canvass and, if necessary, impeach tire competency or the credit 
of the witnesses. The charges, altera copy of them has been 
thus served upnn the prisoner, are unalterable, but under peculiar 
and extraordinary circunjstances. (h) 

Such are the established laic and practicp of courts martial ; 
deduced from the strongest analogies of judicial justice; and 
unanimously enforced and illustrated by all the best and most 
approved elementary treatises, which have been received as autho- 
rity for the law and practice of such courts. But, in this country, 
It does not rest upon such authorities alone; cogent and conclu- 
sive as they are : but upon these authorities, recognized, adopted, 
and embodied into our naval articles of war: by which it is ex- 
pressly enacted that the " person accused shall be furnished with 
a true copy of the charges, with the specifications,'' &c. (c) If 
therefore, the general doctrine required any corroboration from 
statutory enactment, here it is: for, in the use of the term "sue- 
r//tcafio»s," every thing is implied, that, either by definition or 
in practice, J>ad been authentically held to be involved in its 
true meaning and effect. 

Now let this 2d charge and its specifications be brought to the 
test of these rules. 

First of all, as an indictment or information for an offence coo-- 

(a) Adye, pt 1, ch. 6, p. 127-8. Tytler, ch. 5, s. 1, p- 206-218. M'Artbur, 
b. 2, ch. 1, s. 3, p. 6—12. Maoomb, p. 61-8. 

., f f!■^cc■^'l% P- ^^^"^' '^y^^^'' P- ^'^^' 2'*'*' ^58- 1. Mc-\jtbur, 281-2. Ma- 

''i- )_Viii. Laws U. S. vol, 3. p, 358. art. 38. 



189 

nixable by a court of common law ; it is impossible for any lawyer 
to hesitate, one instant, in pronouncing, that it would be utterly 
vicious and void : not for the want of any fur ms or solemnities 
merely technical ; but for the most essential and palpable defects 
of matter and substance. 

Then, by this test, it fails ; there is a plain and incurable fail- 
ure ; the whole must be rejected and set aside. 

liut, let the context of the charge be minutely examined and 
tried by the loosest rules, that the greatest latitudinarian, in the 
forms of military jurisprudence, could desire. 

Before its validity, as the description of any offence, within 
t'le terms of the naval articles of war, can be determined, its 
meaning must be ascertained : and that is the most uncertain, 
obscure, and perplexed imaginable. 

The charge itself, considered separate and apart from the spe- 
cifications, consists of two members: but both, 'tis presumed, in- 
tending the same identical act or oftence; and only describing it 
with superadded aggravation : the conduct imputed, was unbe- 
co'iiing an officer, because it was insubordinate. (a) 

The first member of the charge is " iiisuhordinate conduct;" 
and here we are at sea, without chart or compass: for the con- 
duct, imputed to the accused, is characterised by an epithet un- 
known to our language. Being unable to discover it in any vo- 
cabulary, or other document of the language, either of science or 
of general literature; it was presumed to be a term of art; and 
peculiar to the art military. But no research, in our power to 
make, into the nomenclature of that art, has been attended with 
any greater success. The next process vvas to resort to the ety- 
mology of the word: and presuming it to be used in the nega- 
tive or privative sense of "subordinate," the validity of the 
charge, as a precise accusation under some naval article of war, 
was tried by that test. But it was not found that any quality, 
nejrative or positive, to be inferreil from tlie privative form of 
that adjective, could, by any possibility, be made out to be such 
an accusation. Then presuming that the adjective " subordi- 
pate" might have some peculiar and technical meaning, distinct 
from what is affixed to it in the language of science and general 
literature,— military dictionaries and other works, upon the art 
.military, have been consulted, but in vain, to detect any such 
teclinical meaning. On the contrary, the only book, on ntilitary 
affairs, (and that is one expressly written on military jurispru- 
dence,) in which our very partial research has discovered the 
word, — uses it precisely in the same sense, as in the language 
of science and general literature: that is, as indicating the 
regular gradations in the series of military ranks :(b) a sense, 
entirely conformable to the generally received definition, given 
by the best authorities: "inferior in order; descending in a 
regular scries." Then adopting the negative form of this defi- 
nition, the charge should be interpreted, " conduct not inferiyT 

rnj Vid. the terms of the charge, ante, p 7. 
ib) 1 M'Arthur, ch. 2, s. I, p. 15—16. 



190 

in order ; not descendins in a regular series :^^ and, if such quali- 
ties be, at all, precJicable of any human conduct, moral, civil or 
military, under what article of war, may such conduct be brought? • 
But, the pnrcess of etymology has been pushed still further, in i 
order to discover the true meaning uf this charge: the substan- 
tive, '' siibordinatiun'' has been pressed into the service : and 'tis 
found that, in military language, it has acquired a meaning somewhat t 
more extensive, if not ditterent from that by which it is generally • 
defined and understood : namely, an obedience to orders.fft] Then i 
if, bv any legitimate coinage, "insubordinate conduct" could 1 
be understood as expressing the negative quality of subordinar ■ 
tion, we have nothing more or less than a charge of •' disobedi- ■ 
ence of orders and conduct unbecoming an officer:" a repeti- 
tion, rcrfcfl/jm ^' literatim of the ^rst charge ; the trial of which, , 
upon the evidence, is now in actual progress, before this court. 

This identity of the first and second charges, thus elaborated 1 
from the devious circumlocutions, and loose analogies of the peri- ■ 
j)hrasis, supposed to be couched in the terms of the second charge, , 
is the most favorable interpretation : for the dilemma is fairly - 
put ; it must have that meaning, or no meaning. 

In that sense of tiie charge, which of the five specifications, or i 
what rircu-iista;)ce. in any of them, squints at any disobedience ■ 
of ordirs P 

The second member of the charge, *' conduct unbecoming an 
oflicer," thougli tree from the solecism of language apparent in 
the other, is equally foreign to the terms and definitions of any ■ 
naval article of war. Even, under the extremely vague terms 
of tlie dSd military article of war, ('which is here distanced in 
vagueness and uncertainty,^ it would be utterly untenable : but 
as the naval c^tde contains no analogous article, there is so much 
the less room to entertain this indefinite and unintelligible 
charge. Nothing is more uncertain, or more dependent upon the 
evaof-scent caprices of taste and fashion, than what may '•become 
an ty§icer.'^ !» niay be very uBbecoming in him. to do a thou- 
sand of the most lunocent or inditferent things in the world: he' 
may wear his hat, or his sword, or his coat, after a very unbe- 
coming fashion : what miglit be very excusable, in a young sub- 
altern of twenty, nu^ht be quite unbecoming, in the time- 
honoured veteran : in short, there is no v-nd io the minute instan- 
ces, irj which lie may transgress the decorums of life and good 
breedi-ig, without biinging himself within any of the penal pro- 
hibitions uf ruilitary law. 

The chai-?;e itself being vicious and incurably defective in its 
terms, it becomes, in a measare, useles.s to inquire into the nature 
of the speciricaiions: for if the charge fall, the sperifications fall 
with it: tht whole substratum ou which they rest, with every thing; 
•that may give them significancy or application, being taKen away. 

We have not, however, stopped here ; but have endeavoured to 
discover whether these specifications, ascertained, with anymore 
precision, the true meaninci and gravamen of the charge. The re- 
sult will be found in the following summary of them. 

(fl) Duaiie's Military Dictionary in Voc, 



191 

1st specification. — In explaining the meaning of the charge, 
by this specification, a notable instance of the old paradox of the 
, ignotum per ignotius, of the obscure, explained by the more ob- 
scure, met us at the threshhold. Nothing but "confusion worse 
confounded" followed, from having " insubordinate conduct" exv 
-plained by " insubordinate letters.''^ We are here told that the 
conduct, complained of in the charge, consisted in the vvriling 
of" various letters of an insubordinate and disrespectful charac- 
' ter." Here our old difficulty, from the new coined word, insub- 
[ ordinate, again opposes our research after a meaning : a dif- 
I ficulty certainly not diminished by its being applied to letters. 
1 Our former analogical definition, " disobedience of orders," 
[seems to be further from the mark, than ever. It might be well 
enough conceived, how a man might be ordered not to write a 
i letter; and might, by writing one, disobey the order: or vice 
{Versa: but how the letter itself could acquire the quality or cha- 
; racter of being " insubordinate,^^ is not so easily apprehended. 
I Now take the other characteristic of these letters ; that of be- 
i ing " disrespectful ;^^ and what article of war denounces "dis- 
I respectful letters" as a military offence.'' Besides, — neither the 
i tenor, nor the substance and effect of these letters, is set forth : 
'then hou^ are they disrespectful; in what degree; in what does 

■ the disrespect consist ; and to whom was it offered ? All these 
particulars are left to the vaguest and most uncertain conjecture. 

! There would be no end to the jwssible modes and degrees, in 
[ which a letter may be deemed disrespectful. The disrespectful 
I character, here imputed to these letters, may, for aught that ap- 
1 pears, consist in such a minute transgression of high breeding, 
as that mentioned in a certain popular novel : where a very re- 
; fined and fastidious gentleman, receiving a letter sealed with a 
,i wafer, instead o(wax, indignantly spurns at it, as if contaminat- 
[ ed with the spittle of the writer. 

^1 Upon this whole subject of " disrespectful letters," or " dis- 
■\ respectful conduct," or "disrespectful insinuations," it may be suf- 
: ficient to say, that no such offence, in any of its modes or de- 
grees, is to be found among the naval articles of war. — The 5th 
& 6th of the uif/ifary articles do, indeed, punish contemptuous 
^ or disrespectful words, towards a certain description of enumera- 
ted personages :(''«^ but there are no such articles in the naval 
!'code: and if there were, there is no charge or specification to 
bring the case within them. The naval code punishes mutinous 
words : and the treatment of a superior officer with contempt. (b) 
There is no pretence here, that any conduct or any language ot 
' Com. Porter, was liable to either of these imputations. " Con- 
fa J "Anyofficfer or soldier who shall use conlempfuous ov disrespectful 

■ words, against the President of the I'. S., the Vice iYesident thereof, the 
<Jongress of the U. S., or the chief magistrate or Legishiturc of any of the 
U.S. in which he maybe quartered, if a comiijissioned ofiicer, shall," &c. 

, Art. 5. ■ 

" Any oflRcer or soldier, who shall behave himself with contempt or disrf- 
aped towards his commanding o^ctr, shall," 8cc. Art. 6. 
ChJ Art. 13, 



192 

tempt^^ to a ^^ superior officer,^^ is a technical term; and is, by no 
means necessarily compreliended in the imputation either of " dis- 
respectful letters," or disrespectful insinuations."— Besides, there 
is not in this charj^e, or in any of the specifications, the least 
suggestion, that any disrespect was conveyed, either by the let- 
ters or by the insinuations, to any superior officer, within th; 
meaning of the 13th naval article. But the specifications arc aU 
so radically and incurably defective, in other respects, that this 
is scarce worth nientitming. 

2d. Specification.— This might be discussed by a single ques-, 
lion: namely, what article of war, or what other law had made: 
it unlawful, or, in any sense, improppr, io publish the proceed-* 
ings of the court of incjuiry; after that court had made its re- 
port; had finally disposed of the su!)joct; and had been dissol--, 
ved? The proceedings of thfe court were necessarily open and 
public to all the vvorlil : all tlie world was free to publisli them: 
and why not Com, Porter? If, indeed, it be not a solecism in 
terms to accuse him of publishing what liad already been made 
public, without any agency, active or passive, on his part. ' 

This presents a very different *iucstiun, from that of publish- 
ing, during the j!?ro,5TPi>s and penrieiicij of a trial, detailed and 
piece-meal reports of the evidence, from day to day : a practice 
peculiarly incompatible with the order of proceeding, in military 
courts; and highly improper and mischievous, fur ntany obvious 
reasons, in any court. If Com. Porter had violated the respect 
and duty incumbent on him, as a party before the court of intjui- 
ry, by making any such obnoxious publication, he would, doubt- 
lesSjhave been called to a summary accuunt by the court, in the 
exercise of its incidental power to punish the contempts of par- 
ties and witnesses. But with the trial, every reason against a 
detailed and public r(iport of the proceedin'gs ceased: and, ac- 
cordingly, it is one of the most ordinary, and, at the same time, 
of the most unquestioned rights, to publish such repurts, after 
the trial. In this case, the functions of the court of inquiry, up- 
on which such publication might have operated improperly, had 
ceased : and if any inconvenience has been experienced, in prac- 
tice, from publications which may operate on tl»e deliberations 
of the executive, by convincing or informitig his judgment, it will . 
be time enough to punish the act, when some law shall have made 
it criminal. From thi> specification there is the absence of eve- 
ry circumstance that might have shown how this publication was 
either actually ov pons ibh/ mischievous. The nature of the pro- 
ceedings so published, and the motives and objects of the publi- 
cation, are circumstances that are altogether overlooked. 

Sd Specification. — ^' An incorrect statement of tbese proceed- 
ings." Here, again, we ask, what definite idea, either of the 
/oct, orof the gravamen of the charge, does this specification af- 
ford? Wherein does the incorrectnes consist? Is it in the punc- 
tuation, the orthographij , the sipdax, or any other transgression 
of grammatical rules?Ca) In what degree, and to what e.Ktent js 

CaJ This anticipation proved prophetic. Indeed, when the incjrredmaF 
of statement, chiirgcd in this specification, came, in tlie course of the trial, to 



193 

it incorrect ; and with what design or motive was it made so? 

•Is it in uiateriiil or immaterial circomstances ; from inadvertency 
'i^r design? Here, again, we are left to illinutable conjecture, 
for all iliese particulars ; which should have been distinctly and 
precisely detailed and set forth in the charge and specifications : 
but which, indeed, alter thej had been drawn out, in the minu- 
test detail, could have constituted no offence, cognizable by the 
court; unless criminal falsehood, from corrupt, or malicious mo- 
tives, could have been imputed ; so as to make out a charge of 
sauidaluus con(]uct, &c. under the 3d naval article of war. 

. 4th Specilication. Here, we have nothing but a new version, 

•without the least amendment, in point of minuteness or preci- 

^ sion, (if the 3d specification. It contaiiis only some additional 
u^'^vavatioii', but not one additional fact: the aggravation is, 
that the same publication contained various insinuatioits highly 
dUrespectfiii to the Secretary of the Navy, and to the court of 
inquiry. This might, also, be disposed of by a single question: 
namely, what iirtiele of the naval code, makes any such disre- 
spectfut iiisinuiUions criminal? Rut it may be further asked, 
what passages of the publication were fraught with these insinu- 
ations, and witii what insinuations were they fraught? Why 
were nut all thi^se p.irticulars specified, so that the court might 
have judged, for itself, whether the inuendops were legitimate de- 
ductions fioin tlie context; and, if so, whether disrespectful, 
anil in what degree, and to whom? — As it now stands, the whole 
matter is left s» vugue and uncertain, as to defy the sagacity. of 
the most experienced jury of sworn guessers : it, as has been re- 
ported, but I know u«»t upon what authority, there ever were, at 
any time or place, any sucli auxiliary to the regular administra- 

• tion of justice. 

-■ ' 5th Specification. — After what has been said of the others, 
this requires tittle or no comment. What »particular documents 
are here alluded to and intended, under tlie general description 
of "ofticial cotuinunicatioiis and correspondence," or of " pub- 
lic oiders and instructions ;" — whether there were any injunction 
of secrecy respecting then), either express from a conjpetent au- 
thorilv, or nececessarily implied by their nature and character; 
to whom they were disclosed ; — the time when, the place where, 
and the m.inner how ; are circumstances unexplained, and alto- 
getlier overlooked : which it would be vain to guess at: and if, 
perchance, they shouhl be come at, by the most fortunate and mi- 
raculous of guesses, they would be utterly inconsequential and 
useless, untUr the existing frame of the principal charge. No 
one circumstance, either of the distinctive description and idea- 
lity of the d>>cuments, or of the time, place, or manner of their 
publication, is given ; except that one set is said to have been 

'" made public" " in the same publication," referred to in the 
formei- specification ; and that the other set, is said to have been 

be afterwards deduced into particulars, it hinged upon matters even more mi- 
aiiite than wliat were here anticipated : as appears from the " list of variances," 
■ txplained, ante, p. 132—141. Nos. 1, 2, 5, 6,7, 9, 10. !.■>, 14, &c. 



194 

*<madc public, on other occasions," within a given period o^ 
about eight or nine months. — Now, if every other objection were 
out of the WdLy, what should be said to this latitude of time; in 
the face of the conclusive authorities, above cited ; by which the 
utmost latitude allowed (^and that only in extraordinary cases 
and from an evident necessity^ is an alternative, either, of the 
day, or of the montli, immediately preceding or succeeding some 
certain day or month named in the specification i(a) 

The aim and ultimate end of these objections are analagous to 
a motion to quash an indictment, in a court of common law, for 
any inherent vice in its frame ; which makes it evidently vain and 
fruitless to proceed with tlie trial of it. 

The counsel would beg leave, in conclusion, to remark, that in 
raising these objections, against the regularity and the efficacy 
of the procedure in this case, and in taking some pains to ex- 
plain the grounds of his objections, he has been actuated by pub- 
lic considerations, apart from the particular interests, and uncon- 
nected with the personal wishes and inclinations of his distin- 
guished client. The principles, involved in these objections, are 
certainly of general interest, and permanent importance to the 
service: and now, amid the repose of a profound peace, is the 
accepted timetu adjust the land-murks, and cunsolidate the bul- 
warks of right and justice, in matters of military judicature; to 
establish well considered and safe precedents ; and to supersede 
all such, if any there be, as, amid the haste and confusion of ac-' 
tive service, have been unadvisedly and silently admitted in 
practice, to the peril of individual security, and of the dignity 
and respectability of our military establishments. ('6j All these 
considerations, doubtless, deserve, and will receive the delibe- 
rate attention of this court: but they are not such, as, alone, 
should have determined the professional course of the counsel, in 
the conduct of his client's defence. We clearly perceived from 
the frame of the 2d charge and its specifications, that the whole 
matter of accusation, therein exhibited, was not within the pre- 
scribed limits of this court's jurisdiction; and that, so being 
eoram non judice, the trial of it must necessarily be a vain and 
fruitless consumption of time and labor; without any determi- 
n'ateissue, or conclusion of guilt or inndcence: and, consequent- 
ly, that his client could neither be acquitted nor condemned, Ju- 
oiciaf/y, of the /acfs charged against him. Under such circum- 
stances, it was his imperious duty, to advise the quashing of n 
tedious and unpleasant discussion; irksome to all who feel an 
interest (and it is an interest coextensive with the limits of the 
country^ in the tranquillity and reputation of the eminent and 
meritorious public functioivaries, involved in the dispute. To the 
force of these reasons Com. Porter has, at length, yielded: after, 
the earnest representations and unequivocal advice of his coun- 
sel had overconje a very natural and unatil'cted reluctance to do, 
or to have done, in his behalf, anything that might expose him 

CaJ 2 McArthur, p. 8. Tytler, p. 214. 
fbj Vid. Adyc, p. 98. 



195 

to any possible suspicion of a desire, to evade a trial of the charge, 
upon the evidence. — Indeed, enough may be inferred, even, 
from the very vague and unsatisfactory intimations of the charge 
and the specifications ; from their cautious evasion, or timid 
recoil from a direct approach to a charge of any thing criminal 
or dishonorable; ('without adverting to other matters of public 
notoriety) to repel every possible presumption of his fearing, or 
having reason to fear the least detriment, from the most compre- 
hensive and minute investigation of the facts connected with 
this branch of the accusation." 



We very much regret the want of the document, that should 
here, follow ; being the answer, at full length, put in by the judge 
advocate, to the objections raised by the counsel, as explained in 
the foregoing notes : and that we should be compelled to substi- 
tute a meagre summary, from notes taken during the delivery of 
the answer, before the court. We shall not pretend that it is m 
our power to do justice to the manner, the language or the illus- 
trationa, with which the argument of the judge advocate was sus- 
tained: but simply to state, fairly and concisely, its essential 
points : so as to make what is said, in reply, intelligible. As soon 
as the argument can be obtained, in extenso, it shall be added, m 
an nppendiy. 



196 



[^Having got possession of the judge advocaie's argument, as jmh- 
lished by authority, in time to cancel what had been composed 
of our summary, and insert the. argument, at large, in its 
place; we have stopped the pres:^ for the purpose ; and here pre- 
sent it to the reader, asso puhlished.^ 

Answer of the Judge Advocate to the preceding objections submit- 
ted by commodore Porter'^s cmaisel. 

The paper submitted to the court on Saturday was stated by 
the counsel of captaiu Porter not to be precisely in that state in 
which he wished to annex it to the record. Wifh a view of ena- 
bling him to complete the transciibinp; of it, and to correct any 
verbal inaccuracies which niight, in the hurry of copying, have 
inadvertently crept into it, it was left with him under an engage- 
ment tliat it should be transmitted to me in the course of tl>e 
evening. ISot having received it, I was compelled to despatch a 
messenger for it on the following morning, an<l it was not until, 
about half after ten o'clock that it was put into my hands. 

These circun^stances are novv referred to as my apology to the 
court for the imperfect manner in which it may be supposed I 
have replied to the long and ingenious paper of the accused, the 
work of an accomplished and skilful lawyer and scholar, prepared 
with ample time for reflection and research, and to uliich [ am 
thus unexpectedly called upon to reply in the brief period of a fev 
hours. Unwilling, however, that any delay in the proceedings- 
of the court should be attributed to me, I shall eiideavor to pre- 
sent to the court as full an exposition of my views and opinion? 
upon the question, submitted for its decision, as, in the circum 
stances to which I have relerreil, is practicable. 

It will scarcely be expected or desired by the court, that I 
should follow the learned and ingenious counsel tluo' flie discur- 
sive course which his exuberant powers enable liiin to pursue, 
with so much facility, beauty, and fancy, upon almost every oc- 
casion. I shall consider the (juestions in a simple riud practical 
manner, and only labour so to piesent my views, as that they be 
at once perfectly inrelligihle to the members of a court, who are 
not presumed to be vei-y deeply skilled in le<ial technicalities or 
philoldgical criticisms, and at the same exhibit a full answer to 
the argument that has been submitted. 

Befoie proceeding, iiowcver, to examine critically the various 
objections which have been urged to the second charge, and tlic 
specifications thereof, I would beg leave to submit a few prelim- 
inary remarks for the consideration of the court. 

The analogy, which it has been the object of the learned coun- 
sel to draw between the proceediiiirs of civil courts and military 
tribunals, and on which he has exhibited so much ingenuity and 
deep research, is admitted to a considerable extent. The object 
of all forensic proceedings is the same, and the forms of prac- 
tice calculated to attain the end in view, may well be supposed. 



197 

even in different ages and in remote countries, to bear a consid- 
erable resemblance to each other. Still more reasonable is it to 
presume that the original practice of military courts was in a 
great measure borrowed from that which had been previously es- 
tablished in the civil tribunals of the same country. The princi- 
ples of both were originally the same, the forms of proceeding 
were analogous, and though modifications would inevitably be 
introduced, from a variety of causes, and many forms fanuliar to 
the one be unknown to the other, yet a considerable resemblance 
would continue to subsist. It is, therefore, generally laid dovvn 
by all writers on military courts, that when their own rules of 
practice and principles of decision are not calculated to meet the 
exigencies ot a particular case, reference should be made to the 
civil courts of the same country to supply the deficiency. A re- 
ference ought perhaps to be made on the present occasion, to the 
practice of the common law courts, and the result of such refer- 
ence may be widely different from what is contemplated by the 
accused. No principle of law is better established in the civil 
Courts of our country, as well those of criminal jurisdiction, as 
those which are confined to the decision of private controversies — 
those which are governed by the principles of the common law, 
as well as those which draw their origiti and derive their princi- 
ples of prdceeding from the civil or Roman law, than that the 
accused in criminal prosecutions, and the defendant in pvivate 
controversies, may avail himself, by way of defence, of a defect or 
informality in point of law in the charge alleged, or may con- 
trovert the facts upon which he is sought to be convicted. In the 
case of an indictment at the instance of the government, he may 
deny the facts with which he is charged, or admitting them, may 
deny that those facts amount to a criminal offence. He may, to 
employ technical language, either demur, or take issue upon tlie 
indictment. — He cannot, however, do both. He cannot plead 
nut jj:;niltif to the indictment, and at the same time controvert its 
sufficiency in point of law. He may resort to either defence, but 
cannot at one and the same time adopt both. Tlie rule is the 
same in civil controversies, and the practiv3 of thecivil law courts 
is precisely analogous. 

Conceding then that the analogy exists, for which the accused 
so strongly cimtends, and which, with certain modifications long 
and well established, undoubtedly exists; it would seem to fol- 
low, necessarily, that the accused in the present instance has a 
r'*ght which it is not intended to controvert, to make his optiori, 
whether he will demur to the charge, as insufficient in law, or de- 
ny it as unfitunded in fact. He has chosen the former course, and 
the consequence of such election may be ascertained by reference 
to the practice of those courts from which his rty;ht is derived, 
" [f the defendant demur to the indictment, wiiether in abate- 
ment or otherwise, and fail in the ar<j;ument, he shall not have 
judgment to answer over, but the decision will operate as a con- 
viction." Such is the doctrine laid down by one id' the writers 
of criminal law of the highest au ihority. Ca^ Unless in cases 

(ff) lChitty,301,(442) 



198 

M-here the punishment is death, in which, from principles of hu- 
manity, a greater latitude is allowed, a prisoner who demurs to 
the indictment, adiuits the facts with which he fS charged, and 
rests his defence upon the lavv alone. Should the indictment be 
determined sufficient, he is adjudgeil guilty. The analo»y then 
for which the accused c<mtends in the present case would, if pres- 
sed to the extent to which it must be carried, if admitted at all, 
involve this consequence, that if it should be determined by the 
court that the present charge and the specifications under it, do 
contain an averment of an oftence of which this court can take 
cognizance, he is precluded from going into any evidence either 
of exculpation or mitigati()n, hut must, bv the decision of the 
court against the validity ef these exceptions, be adjudged guil- 
ty to the full extent of all wit!i which he is charged. Having 
selected Hie ground i*n which he will rest his defence, the \ev\ 
doctrine for which he so vehemently contends, confines him to 
that, and to that alone. 

The present application to the court is assimilated by the coun- 
sel for the accused to a motion, sometimes made in criminal courts, 
to quash the indictment. The resemblance is defective in nu- 
merous particulars, [t will [>e unnecessary to refer to more than 
one which is perieclly decisive of this question, and which isdis- 
tinctly stated by the same author from whom I lia've just quoted. 
" It i? therefore, a general rule, that no indictments which charge 
the higher oft'ences. as treason or felony; or those crimes which 
immediately afl'ect the public at large, as peijury, forgery, extor- 
tion, conspiracies, subornation, keeping disorderly houses, or of- 
fences affecting the highways, not executing legal process, will 
be thus summarily set aside. ''(ft) 

Anothci' remark is eminently entitled to the consideration of 
the court, not merely as strongly corroborating the conclusion to 
which I have nlready |Kiinted, but from its own intrinsic impor- 
tance. At least two of the speiifiriitions charge a fact, which it 
is presumed, will not be confrovorte{l, ami the only (pjestion which 
could seriously be contested belbre (his court, would be that now 
raised ; — do the facts therein «et forlli, constitute olfonces for 
nhich the accused ciin he made amenable before a liiiiitary tribu- 
nal. It will scarcely be denied, and indeed the counsel for cap- 
tain Porter, has intimated to me, that the fact of publishin;: the 
pamphlet alleged in tin- second specilication, and various instan- 
ces of the facts averred in the fifth specification, will be admitted. 
The facts being conceded, not Uierely b\ iiifeience of law, but 
literally, the only question remaining ii, dv> they cctnsiitute an 
ort'er;ce of wliich this court can take fogni/.anre. The determin- 
ation of that (juestion is, at ati events, therefore, to that extent, 
a decision as to the guilt, or innocence, of the accused. By the 
n.ith adml';(^f;'red at the organi'/.ation of the court, the proniul- 
;:;ition of lhi> sentence of tlit.^ court, is prohibited U> each of its 
members, aiid to the judge advoca.'e. If, therefore, this question 
i^hould now be decided, as merfdy a coUat'Mil one, and tlia<: de- 

:.b) 1 Cbltty203,<.c00,) 



199 

ciiiion r>ot be regarded as a final determination of the case, and 
•as such announceil to the department, the consequence seems in- 
evitable. So much of the sentence of the court, as ascertains 
whether the accused is or is not guiWy, is promulged contrary 
to the oath which has been taken, 'rhese considerations can 
scarcely have escaped the notice of the very able counsel of the 
accused ; and it is not to be presumed, tfiat the consequences 
which have been pointed out, were not antici()ated. At all events, 
the court has been placed in this dilemma by tiie accused, and 
upon him must the consequences rest. 

I would beg leave, respectfully, to submit to th^ consideration 
of the court, another view of this question, not confined, in its 
application to the present case, but of great and general impor« 
tance. Military tribunals are, as has been conceded by the coun- 
sel for the accused, in many essential respects, co\jrts of honor. 
Many of the charges, wliich it is usual to try before them, involve 
considerations of infinitely higher moment, to the individual ar- 
raigned, than the mere punishment to which, if found guilty, he 
will be exposed. The honor of a^i ofiicer in the navy, should be 
infinitely dearer to him than any other consideration. The mem - 
ber'ssfsuch courts are far better qualified to decide upon qites- 
tions of this character, than upon the subtleties of special plead- 
ing, or tlie refinements of verbal criticism. It will be a subject 
of regret should it become common in the service, for officers 
chargrd witli conduct unbecoming their character, involving their 
personal honor and veracity, to rest their defence upon technical 
iormahties and critical niceties; which, even if allowed to pro- 
tect them from punishment, will leave them exposed to obloquy 
and odiiiinas guilty, in point of fact, of wiiat is perhaps in inac- 
curate hiiigtiage, alleged against them. What gratification will 
it hereafter afford, eititer to the high-minded honourable gentle- 
men, who usually compose a court-martial, or to the high-minded 
and honourable associates ami companions of one arraigned be- 
fore them, f(tr conduct unbecoming his rank aaid station, if on the 
stiength of a precedent established by such authority as thi* tri- 
bunal, the accused should be absfihed from punishment, because 
the per^on who drafted the charges, has committed a verbal in- 
accuracy, or technical error, which, though it may nullify the 
charge in point of form, leaves the character of the accused, bur- 
theiied vvith all the odium which the accusation itself creates, 
augmented by the tacit admission of guilt, which is involved by 
resting his defence, not upon a denial of the fact, but a nicety ot* 
special pleading or a philological criticism. 

So long as the members of a court-martial can perceive, that 
the offence charged, is coached in language sufficiently perspi- 
cuous and precise, to apprise the accused of what he is called 
upon to answer, su long, it is hoped, will they beaverse to receive 
any defence, grcmnded upon mere defects of form. Such tribu- 
nals will ever be opposed to trying a brother officer, upon charge* 
purposely couched in ambiguous language, calculated to mislead 
or entrap the accused. While they will be disposed to exact on 
the part of (tie prosecution, all information, and ev?ry light 



200 

which can be required by the prisoner, fairly and fully, to meel 
and refute the charge, they will be equally indisposed to demand, 
that degree of precision and formality which, while it contributes 
no aid towards preparing tlie defence, or guarding against oppres- 
sion or surprise, only enlarges the field for the display of ing*-.- 
nious and captious criticism. 

\Vi>en such ceases to be the regulating principle of courts- 
martial, all that now constitutes the pride and honor of the ser-' 
vice, will be at an end. Officers, instead of devoting their time" 
and attention to their professional duties, instead of cherishin<r a 
lofty and chivalrous sense of honor, instead of encouraging thui 
spirit and feeling, which, while it confers dignity and magnanimi- 
ty upon the superior, gives elevation and respect to the inferior 
in rank; will resort to the quirks and quibbles of the special 
pleader, the subtle casuistry of the professional logician, or the 
pedantic refinements of the verbal critic. How far soch a change 
is desirable rests with this court to determine. With great jus- 
tice has it been remarked, that the decisions of this tribunal will 
be looked to with respect and deference. Precedents here estab- 
lished will be followed hereafter ; and great weight will" necessarily 
be attached to every opinion emanating from such high audir.rlty. 
An appeal of a somewhat personal kind was a tlay or two since, 
made to me. A hope was intimated, and that hope is now enfor- 
ced by something bearing the appearance of a tiireat, if not grati- 
fied, that the judge advocate would drop the charge, to which 
exception has been taken. It seems to be intimated that an in- 
vestigation would, or might, disturb the tranquillity or reputation 
of some eminent and meritorious public functionaries involved 
in the dispute. Such a step, under tliese circuij^stances, would 
be repugnant to the wishes, and under any, would be wholly be- 
yond the powers as well as incompatible witli the duties of a 
judge advocate. The charges have been preferred by the gov- 
ernment, and by it submitted t;) this court fur ailjudication. 
The power which preferred can alone withdraw the accusation-— 
the tribunal to which it has been referred, can aione judicially de- 
cide it. 

It may, however, be observed, Ihut the government cannot be 
supposed tube tenacious upon this subject, nor is the smallest so- 
Hcitude felt by the judge advocate as to the decision of tliis 
question. Those who alone are inteiested, are the accused and 
others belonging to the service : and sucli a decisiim as is craved 
may well be deprecated by them. The offences charged, are 
such as the government possesses ample means to punish. It 
can vindicate its own authority, and protect itself f'om contu- 
nielious or insulting language. Disrespectful conduct and let- 
ters, to the head .of the Navy Department, have heretofore been 
punislied witiiout the instrumeniality of a court-martial, and 
niav be a^;ain. If this court shall determine, that such conduct 
ana sucli language constitute no oftence, of which it can takw 
cognizance, the consequences of tliat decision will be felt, and 
felt only by those belonging to the service. The government, 
instead of submitting cases of tliis description to the determina- 



201 

tion of such a tribunal, instead of bringing thopse who have oflfen- 
de<l before their peers, for a fuir and impartial trial, will be com- 
pelled by tile principle of self preservation, to exercise the pow- 
er which it possesses, of punishing the offenders. The act of 
gubniilliiig this case, therefore, to this court, so far from being a 
measure at which the accused ought to take exception, should be 
received bv him in the same feeling in which it was done. The 
only object' was to aftbrd him an opportunity of submitting to the 
impartial determination of his peers, whether any justification, 
any extenuation, any apology, could be offered for conduct, which, 
in itiielf, seemed so highly reprehensible and so deserving of pun- 
*ishment. If this court sliall determine that, in jioint of law, 
every olticer in the navy may, without violating any article of 
the naval code, and without subjecting himself to punishment, 
before a military tribunal, write disrespectful and insubordinate 
letters to the President of the United States, and to the Secreta- 
ry of the Navy ; may publish to the world his orders and in- 
structions from the ;M>vernment, and his correspondence with the 
department ; may publish accurate or inaccurate statements of 
the proceedings of courts of inquiry, while the same are under 
advisement of tlie executive; may make charges and insinua- 
tions, not warranted by the facts, highly disrespectful to the Sec- 
retary of the Navy and the members of a court appointed to in- 
vestigate his conduc', — so let it t^e. The individual, charged by 
the government with sucli insubordinate conduct, should be the 
last to desire to withdraw such an accusation from the decision of 
his brother officers. 

On this occasion, as on all others, in which it prefers charges, 
the government has expressed its opinion that the acts which the 
accused is alleged to have committed, are reprehensible, and de- 
serve punishment. AH charges brought before a military tribu- 
nal, necessarily involve the iilea, that the person who prefers 
thtm, conceives the facts set forth to be criminal, to the extent in 
which they are sochaiged, unless some circumstances of justifi- 
cation or mitigation can be presented. Toe single object of sub- 
mitting the charges to the consideration of the court, is to ascer- 
tain judicially, whether or not, he has acted as he is charged with 
acting, and whether he was justified by the circumstances ih 
which he was placed, in so acting. In the present instance, an 
opportunity has been attbrde<l to the accused before this high tri- 
bunal, of proving that he was authorized to use the language 
which is accused of being disrespectful ; that the assertions and 
insinuations alleged to be not warranted by the facts were true, 
and that he was justifiable in tlie c(mduct which is charged to be 

reprehensible. Instead of availing hiujself of this opportunity, 
he insists that these allegations, if true, contain no matter to 

which he can be called upon to answer before a court-martial. 

lie rests his defence upon the law, and by the law his case must 

be decided. 

I shall now proceed briefly to examine tlie objections both gen- 

•ral and particular, thac have been urged, and shall endeavour to 
■.:6 



203 

satiify the court b}' reason, by positive enactment, and by prece- 
dents of high authority, that 'this char<j;e, and each and every of 
the specifications, are sufficient in point of law. 

On the present occasion it may be considered as superfluous 
to disprove the correctness of a general position which has been 
asserted with so much confidence by the very able counsel for 
the accused, that no ott'ence can be "tried before a court-martial, 
but one which is specially prohibited by some positive statutory ; 
enactment. To shew that the learned counsel has been in this -j 
particular not quite so accurate as might have been expected from 
his known accomplishments and varied erudition, 1 shall beg 
leave to cite a single passage from an author to whom he lias fre- 
quently referred. Mr. Tytler, after quoting the 36th section of 
the British mutiny act, thus proceeds to comment upon its provi 
sions. — " Although it follows from these clauses, that no crirne 
which is mentioned and defined by the articles of war, is punish- 
able by a c(»urt-martial in any other manlier than that which is 
specially directed by those articles; yet it <lnes not follow that 
there are no crimes punishable by a court martial, but such as are 
enumerated and declared to be punishable by the articles of 
war." (a) He then proceeds to shew that a court-ujartial n>ay 
inflict punishm-ent for any breach of the regulations or orders res- 
pecting the army, though ii(»thing tcmchiug the same should ap- 
pear in the mutiny act or article,-- of war. In the following page 
he continues — " Bu-t there are offences which admit of no precipe 
definition, and yet, which in the military profession, are of the 
most serious consequence, as weakening and subverting thnt prin- 
ciple of honor on which the proper discipline of the army must 
materially depend. Of these, a court-martial, which is in the 
highest sense a court of honour, are themselves appointed the 
sole judges, or rather the legislators ; for it is in their breasts to 
define the crime, as well as to uwaic! the [)unishuient.'* 

Every officer in the Navy, occupies a particular relation with 
the President of the United States, his commanding oilicer. by 
whose appointment, and at whose pleasure lie holds liis c<immis- 
sion. Many instances of crimes of a niilitarv character might 
be enumerated, which are not in te'U»s piohibired by anv code of 
naval law. Many military oH'ences it would be impossible to de- 
fine, with the same accuracy with which ott'ences at common law 
are defined. Many are wliolly dependent upon the relationsliio 
which subsists bt-tween the officer and his superior. Among these 
is insubordination, a term perfectly well understooi!, both in ci- 
vil life and in military service. The definition, (»r rather de- 
scription of sahordination. has been given with "jreat accuracy in 
one of the works to which the learned counsel has referred, and 
it will hereafter be particularly cited. Withoi.t subordination no 
service can exist, no di^icipline be enforced, no harmony preserv- 
ed. It is |)eculiarly a military duty, though by no means exclu- 
sively so. The general peace of society, the domestic tranquillity 
of families, cannot co -exist with insubordination. The genwar 

r/i) p. r07— 8. 



203 

meaning of the term subordination, may be distinctly com.pre' 
bended, but it would be impossible to enumerate all the cases, 
miich less to describe them with logical accuracy, in which an of- 
ficer may be guilty of insubordination. The meaning of the term 
being comprehended, and no soldier can long remain ignorant of 
its signification or of the necessity for enforcing it, its applica- 
tion to particular cases, must be determined by the sound discre- 
tion of the court. In this respect, it is analogous to mutinous 
conduct, disobedience of orders, &:c. which must always and ne- 
cessarily be equally vague and indefinite, and be equally applica- 
ble to a thousand wholly dissimilar actions. 

So also, in regard to conduct unbecoming an officer, or as tSie 
same idea is frequently expressed in military books, and before 
military courts, unolficer-like conduct, a form ofexprejssion which, 
though perhaps not found in any vocabulary, is as intelligible as 
any other in the language. Whether any particular aat merits 
this epithet, can scarcely be a matter of serious doubt among of- 
ficers wlioseown characters and demeanour clearly demonstrate 
that they perfectly well understood in theory, and never omit in 
practice, a conduct which becomes their rank and station. If 
doubts on such a question should arise, they will never be solved, 
nor will the minds of the members of the tiibu.nal whose duty it 
is to decide them be illuminated, by special pleading or verbal 
criticism. The instances are numerous in which officers in our 
own service have been arraigned before military courts for acts 
which are stigmatised as unbecoming their station, and perhaps 
it would be difficult to conceive a more complete disqualification 
for holding a commission, than an actual ignorance of the mean- 
ing of these phrases. 

The learned counsel, in commenting upon this charge, has al- 
leged that " the conduct imputed to the accused, is character- 
ised by an epithet unknown to our language;^' and, after ex- 
haustingliis critical talents in conjecturing its meaning, he comes, 
at last, to the conclusion, that the signilication to be attached to 
it, the most favourable to the prosecution, i?, that as subordina- 
tion has, by one single author, been made to signify obedience oj 
orders, insiihnrdination, or insubordinate conduct, must mean dis' 
obedience of orders. 

Without indulging tiie idle expectation, that it will be in my 
power to compete with the ingenious gentleman in his philologi- 
cal leseaches, or to do full justice to a specimen of verbal criti- 
cism, which, however suitable an appendage to the diversions of 
Purley, seems to have wandered out of its proper sphere, when it 
found its way into the proceedings of a jcourt-martial, I must beg 
the indulgent attention of the court to a few remarks. 

One of the most beautiful and philosophic writers, whose works 
embellish English literature commenting upon a similar eilbrt 
of ingenuity, asi^erts that it proceeds *' on a supposition, founded 
ou a total misconception of the nature of the circumstances, 
which, in the history of language, attach difterent meanings to 
the same words, and which, often, by slow and insensible grada- 
tious, remove them to such a distance from their primitive or ra- 



204 

dical sense, that no ingenuity can trace the successive steps of 
their progress." (a) 

The signification which the learned counsel has quoted and at- 
tributed to the words subordinate and subordination^ is unubjection- 
able; I shall, however, shew, that tliey are employed by liigh au- 
thorities, in a sense perfectly appropriate to the present occasion. 

In the report made by general Scott, containing a system of 
field service and police, submitted to CAtngress, Dec. 26, 1820, p. 
50, and approved by that body, in giving his definition of disci- 
pline, he attaches to it this meaniny; : " correction, or the enforce- 
ment of subordination ; the award and inlliction of punishment, 
consequent on a breach of that subordination, that is consequent 
on a neglect or breach of some duty." 

In the present military code, it is repeatedly, it is believed, 
employed in the same, or closely analogous sense. In Ouane's 
military dictionary, quoted by the learned counsel, it is thus de- 
scribed : '• a perfect submission to the orders of superiors ; a per- 
fect dependence, regulated by the rights and duties of eveiy mili- 
tary man — from the soldier to the general. Subordination should 
shew the spirit of the chief in all the membrrs; and this single 
idea, which is manifest to the dullest apprehension, suffices to 
shew its importance. Without sul)ordination, it is impossible 
that a corps can support itseli" — that its motions can be directed, 
order established, or the service carried on. In effect, it is sub- 
ordination that gives a soul and harmony to the service ; it add^ 
strength to authority, and merit to obt-dience ; and while it secures 
the efficacy of command, reflects honour upon its execution, li 
is subordination which prevents every disorder, and procures 
every advantage to an army." 

In the same sense is the word employed in the first article ol 
the rules and regulations for the government of the navy ; " the 
commanders of all ships and vessels of war are strictly enjoined 
and required to shew in themselves a good example of virtue, 
honour, patriotism, anil subordinatiun.^^ 

In the 2d vol. of Marshall's life of Washington, p. 245, 6, that 
eminent authority remarks — '• The army was Consequently found 
in a state of almost entire disorganization, and the difficulty of 
establishing the necessary principles of order and snbordinatio7i, 
always considerable among raw troops, was greatly increased by 
the short terms for which enlistments had been made." 

In a letter from general Washington to governor Henry, ol 
Virginia, note XIX, at the end of the same volume, he says — 
"discipline and subordination add life and vigour to military 
movements." 

If the signification of this term should be considered as ascer- 
tained by the foregoing citations, which have been introduced, 
tor the purpose as well of showing the nulitary sense of the term, 
as the high importance of the military duty of subordination ; it 
would, perhaps, be unnecessary to consunie time in shewing, by 
reference to equally high authorities, the meaning of the word, 

faj Stewart's Philos. Ess. 239. 



205 

and the dangerous character of insubordination. It mi<^ht be 
suflicient to quote from Dr. Johnson's preface to his dictionary, 
a single passage, to shew why this term is not found in any vo- 
cabulary of our language, if such indeed be the fact. That learn- 
ed lexicographer observes — " of some forms of composition, such 
as that by which je is prefixed to denote repetition, and im to sig- 
nify contrariety or privation, all the examples cannot be accumu- 
lated, because the use of these particles, if not wholly arbitiary, 
is so little limited, that they are hourly affixed to new words, as 
occasion requires, or is imagined to require them." 

1 shall, however, cite a few examples of the use, as they will 
serve to shew the signification of the word. 

The chief justice, in the 2d volume of his life of Washington, 
p. 3'27, speaking of the character of the American troops, at an 
early period of the revolutionary struggle, observes — "a spirit of 
insubordination seemed to pervade the whole mass." In page 
366, referring to the condition (if the American army in Canada, 
under the command of general Sullivan, he observes, " the whole 
were in a state of total insubordination." 

The word is employed repeatedly by the very able and accom- 
plished gentleman, who prepared, as counsel, the defence of 
li#it. Kennon. In p. 75 of the report of that case, he says, "do 
not believe I aui an advocate for insubordination. If one expres- 
sion of that character can be found in my letter, I merit punish- 
ment, and will patientlv endure it." In p. 88 : " the testimonial 
which this court has deigned to afford me by iheir evidence, per- 
mits me to say, and to say proudly, that I have never dishonored 
it by one act of insubordination, or the smallest departure from 
duty." In p. 91 : "discipline is exposed to two foes, coming 
from opposite quarters, and assailing it at different points. In 
subordination, which founded on man's natural impatience of con- 
trid, often leads the inferior to resist necessary authority, &c." 
Again, in the same page ;'• if insubordination, in its restlessnes>, 
has sometimes raised its arm against rightful authority, &c." And 
in p. 92 : "I venture to anticipate such a decision as will remove ' 
this unfounded opinion, maintain the true discipline of the navy, 
and convince all grades of service, that, though insubordination 
will always receive its merited punishment, oppression will find 
neither countenance nor impunity." On the same trial, the sen- 
tence of the court, drawn up by the judge advocate, bearing the 
same name with the learned counsel, whose ingenious criticisms 
have given occasion to this, I fear, tedious examination, and, as I 
understand, nearly allied to him, contains tliis sentence : "the. 
court cannot, by its silence, give sanction to sentiments, which, 
though, clothed in the mantle of a defence, are calculated to dif- 
fuse princijdes of insubordination in the navy." 

A single reference to an English work will be sufficient. Mr. 
Tytler, whose learning has been highly commended, and whose 
authority has been recognized by the learned counsel, in p. SC, 7, 
of his treatise, says, speaking of Cromwell: "finding that the 
whole army would be speedily in a state (tf anarchy and total in- 
subordination, he determined, by a daring exertion of power, to 
remedy this alarming disorder," 



206 

At'tei- these citations, I feel myself fully warranted in saying, 
that if tlie word insubordination had been employed, instead of 
the phrase insubordinate conduct, no possible exception c()uld_ 
have been taken to it, either as " a solecism in language," or in- 
definite in its signification. I will respectfully subiiiit to tlic 
court whether it is possible even for the microscopic perceptions 
of the learned counsel to distinguish the ditl'ercnce between them. 
The signification of both is the same, and the obvious meaning to 
be attached to either form of expression is, such conduct as is 
wholly unsuitable to the relation which subsists between the per- 
son guilty of it, and hia superior in rank and authority. 

As has been already intimated, my object in multiplying quo- 
tations, has been not merely to sh«w the propiiely and lyguiiua- 
cy of the expression empl(»yed in this charge, but also to estab- 
lish the next position U[)on which I shall proceed to make an ad- 
ditional remark, that subordination is a high military t-luty, und 
insubordination a high military t)l!ence. It has been shewi) that, 
by the 1st article of the rtgulaiions for the government of the 
navy, all commanders of vessels, &c. are strictly enjoined to 
shew in themselves a good example of virtue, honour, patriot- 
ism, and subordination. — Why this injunction, if those to whom 
the example is set are not bounti to foll(»w it : if insubordination 
or insubordinate conduct be not a military offence r To require 
that the military law should specially enjoin subordination, or pro- 
hibit insubordinate conduct, would be as w^se as torequiie that a 
particular statute should be passed, specially forbidding the vio- 
lation of any law, and requiring tibedience to law. livery citi- 
zen, independently of special en;ictmentto that effect, by enter- 
ing into the social compact, by the very act of becoming a mem- 
ber of the ccnimunity, engages to obey the laws of that society 
to which he has attached him-elf. In likt! nianner, every soldier, 
by connecting himself with the service, assumes upon himselt the 
'Obligation to perform the military duty of subordination. 

A inan accused before a court of common law, or before a court- 
martiai, of treason or murder, may with equal shew of reason de- 
mand to have the particular statute pointed out, which prohibits 
those higli offences. None such can be produced. In the law of 
<iod is found the proiiujuion "thou shall do no murder ;" it has 
not been introduced into any statutory code of social or munici- 
pal law, wi?h which 1 am acqu«infed. The proliibitiun in them 
;s tacit, th(» offence is described, and the punishment allixed. 

It is said, however, th;:tlhe language of this charge is too vague 
and equivocal ; lli.it it doea not apprise tiie accused of what he is 
called upon lo answer. Niwnerous authoiities have been cited to 
enforce and illustrate this posiiion. A relerence to them will 
ihew, thut the learned cnunsol has re(juir.-d far more minuteness 
of detail tli.in is warrantt d by any writer upim military law, or 
by the pra; tice of courts-niitrtial. Tytler, in the passage read by 
the learned counsel, p. ^AS, y.peaLing of the only instance in which 
ihe British military code enjoins a particular specification, says — 
■' it might perhap* be argue! that in other crimes such specillca- 
tiua i*? not <»ssential!y necessai^y : and it fjiust be owned, that, in 



207 

|>ractice, it has too frequently been dispensed with, and a gener 
al charge allowed, as of mutiny, disobedience of orders, disres- 
pectful conduct to superior ofTicers, &c. But the generality of 
such charge, although it may not be absolutely reprobated by the 
military law, or amount to an avoidance or annulling of tlie indict- 
ment, affords, in every case, a competent and weighty objection 
upon the part of the accused, which he may urge, to the etfect of 
having the chai-ge rendered special, by a pointed detail of the 
piirtii.ular facts on which it is founded." The same idea, in the 
same language, may also be found in McComb's treatise. From 
this passage it clearly appears, that a prisoner may be arraigned 
before a court-martial, upim (he general charge of mutinous con- 
duct, disobedience of orders, and the like, without any specifica- 
tion ; that such generali:y of languau;e does not vitiate or annul 
the indict(nent, as it has been teim<!d ; and that the o'nly course 
by which the accused can remedy or guard against the inconve- 
nience to which he may be tiiereby subjected, is to require of the 
proseciitor particularly to specify the facts which he intends to 
prove by testimony. In the present instance, therefore, the ac- 
cused would be unable to succeed in his pi"esent application to the 
court, if the charge had been as general as it now is, and ui-ic- 
coiopiinied by any specificarion o;' fhe circumstances in which the 
alleged ciiitiinality consists. If he apprehended inconvenience, 
or surprise, he might have applied to the court to require such de- 
tail, befoie he undertook to plead to the charges. 

The leijrncd counsel has indeed intimated that this cannot be 
done it) this country, because one of the articles for the better go- 
vernment of ilie navy, prohibits any alteiation in the charges, 
after the saine have been furnished to the accused. To this re- 
niark, two very sulricient and conclusive answers present them- 
selves. First — Tlie statement of the prosecutor, under the or- 
der of the court, of the paiticular evidence by which he designs 
to substantiate the general ciiarge. neilhor is an alteration of such 
charge, nor <ioes it recpjire such alteration To be inade ; it is a 
wholly extiiiisic act. — SecoiuUij — This provisiow is made fur the 
Sole protecHon of ^lie arrtised, and no principle of law is more 
clearlv soHtled, tlian tlial any one may renounce the benefit of a 
statutory provision designed for his owti advantage. If then th.e 
accused had called for such a detail, as Mr. Tytler says he may, 
and the court had deemed tiie present a casein which he was ea- 
titled to a inuie particuhir speciiicalion of the facts designeil to 
be given in evidence, such detail niighl have been furnished with- 
out any violation of the law. U is understood that precetlents 
of this' kind exist in our own service, and if nune has yet been 
established, it would have furnished mj valid exception to the ap- 
pli< atioti. 

I shall now brielly prt)cee(l to cite a few cases in which this 
generality of charge has Ik'<M4 allowed without exc-eption. In the 
case (»f captain Shaw, the second charge was <' unuliicer like and 
ungcntlema.n-like conduct." In the case of sailing-master James 
B. VVritrht, the charge was " unofficer-Iike conduct." In the 
ca-sp of lieut. Ben3'^"iin RitMraids'on, tlie charge v\as ''conduct 



208 

unbecoming an olTiccr and gentleman.-' In the case of sailing- 
master Daniel Dobbins, tlie charge was " ungcntlemanly and iin- 
officer-like conduct." In the case of midshipman Payne, tlie 
fust charj^e was "defamation of character," and the second •' un- 
olficeriike, ungentlemanlike, and scandalous conduct." These 
cases are sufiicient to shew that such a charu;e as has been pre- 
ferred in the present instance, is as well established by precedent 
in our own service, as I have shewn it. to be by arefeience to wii- 
ters on military law, of the highest'authority and respectability. 

It is however, to take an imperfect and incorrect view of this 
question, to consider llie charge as perfectly insulated, and stand- 
ing by itself. Connected with the specifications, which point out 
the particular instances in which the conduct of the accused is 
alleired to be insubordinate, and unbecomin"; an officer, he could 
scarcely have been induced to suppose that the particular dress 
in which he might choose to appear, the fashion of wearing his 
sword or hat, or the other min(n' directions from fas'nion, or the 
cominod routine of society to which reference has been sportively 
and facetiously made, could have been intended as the particular 
instances in which he had rendered himself amenable to this 
chu'ge. All the vagueness and indistinctiveness alluded to by 
the counsel, vanish when a reference is niade to the particular 
fiicts stated in the specifications of this charge. It is not by the 
charge alone, but by the charge accompanied by thespecificatioii?, 
that this point is to be determined. 

To these specifications I shall now recur, and submit to the 
consideration of the court a few remarks upon the particular ex- 
ceptions that have been urged against them. 

The first sjiecification charges the accused with writing, and 
transmitting to the i^resident of the United States, and to the 
Secretary of the Navy, the letters therein referred to, which arc 
alleged to be of an insubordinate and disrespectful character, 
thereby violating the respect due from e\e:ry ofticer in the navy 
to the head of the department, impairing the discipline of the 
service, and setting a most dangerous and pernicious example. 

It is objected to this specification, that it does not set out the 
language alleged to be disrespectful, and that it does not charge 
any olVence, cognizable before a court-martial. It is somewliat 
singular that such an exception should now, for the first time, be 
presented to the consideration of a court-martial. In the case 
of lii'utenant Abbot, the third specification is in the following 
words : " in tliat he did, during the time, on the station aforesaid, 
on orab'»ut the \Uh day of January, last past, address a letter 
to tlie Secretary of the Navy, covering a communication written 
in his own hand-writing, or by his direction and request, contain- 
ing numerous false, scandalous, and inalioious charges, against his 
superior oificer, captain Isaac Hull, c.ilcuiated to deprive the said 
captain Hull of his honourable fame." Here a letter is referred 
to by its date only, as containing charges of a very serious cha- 
racter, against the individual therein mentioned, but not a word 
of that letter is recited in the specification. The charge and 
Specifications, in that case, were drawn up and signed by captain 



209 

Porter, in his official character as navy commissioner. — ^The 
court, consisting of jnembers, of whose intelligence and capacity, 
it would, on this occasion, be indelicate to speak, as three of them 
are now sitting on this case, tried lieutenant Abbot, found him 
guilty, and sentenced him to be punished on this specification. 
. Neither the accused, nor the very eminent counsel conceraed in 
his behalf, William Sullivan and Samuel L. Knapp, esqrs. ever 
conceived that it was necessary to set forth those passages in the 
letters, which were deemed reprehensible ; and it escaped the ob- 
servation of the Secretary of the Navy, now one of the judges of 
the supreme court of the United States. If the objecti(-n in the 
present case is sustainable, with how much propriety and force 
might it not then have been urged ? So, in the case of lieutenant 
Keniion, in which also the same prosecutor preferred the charges, 
and, on tlie trial, of which three of the members of the present 
court sat, the tirst specification charged the accused in a still 
more vague and general manner, than captain Porter is now 
charged, "by falsely and maliciously publishing, in the Norfolk 
and Portsmouth Herald, of the 13th of^ Deceniber, and in the co- 
lumn dated the 12th of the same month, a letter purporting to be 
from me to him, when I never wrote such a letter." It is true 
that all olyections arising out of defects of form, are, on that oc- 
casion, distinctly waived by the accused, who rested his defence 
exclusively upon the broad denial of the fact, but no intimatiop 
was given by any one, that such a specification was deficient in 
that particular. So inthecase of midshipman Payne, under the 
general charge before mentioned of "defamation of character," 
the specihcation was, " that he did on or about the 2d of Decem- 
ber, 1821, send or deliver to commodore Jones a letter, contain- 
ing a number of charges, charging jnidshipman Purvyance with 
theft, cowardice and other disgraceful acts." In all these cases, 
whether because such an exception never occurred to the accused 
as sustainable, or because they preferred meeting the charge on 
the broail basis of fact, no such technical objections were 
urged. These now constitute precedents of high authority, and 
their weight is increased by the high rank of the accuser in the 
two first cases, the exalted character of the court by which they 
were tried, and the eminent abilities and legal erudition of the 
counsel, employed by the accused. 

The second specification contains the charge of publishing to 
the world, what purports to be the proceedings of the court ©f 
inquiry, without tlie authority of the executive. Whether an 
ofticer is not guilty of insubordinate conduct, and conduct unbe- 
coming his station, in making an appetil to the nation, and endeavor- 
ing to prepossess the community with the merits of his case, and 
to forestall public opinlun, while that case is undergoing the ex- 
amination and consideration of the executive, may be submitted 
to this or any other tribunal. The pernicious cbnsecjHdnces tliat 
may result from such a step, cannot escape the notice of the most 
superficial observer, and can scaiTely be exaggerated in the imag- 
ination of the most timid. 



210 

If this be I'epreliensible and erroneous, stfll more must it be. 
to publish an inaccurate report of such proceedings. Whether 
such inaccuracies be deemed trivial or important, is a niatter of 
subordinate consideration. The liability to fall into error, though 
inadvertently, affords one of the most conclusive reasons to shew 
the impropriety of any such unauthorized publication. 

It is, however, alleged that the inaccuracies should have been 
specified. The authority of Tytler has been alieady referred to, 
for the purpose of shewing that a charge is not vitiated by being 
couched in general language, and unaccompanied with any speci- 
fication, and the inference is irresistible that, if a specification is 
made, it is not an essential defect that it does not specify the^ 
particular inaccuracies which are contained in a publication spe- 
cially referred to. The first specification, in the case of lieuten- 
ant Abbot, prepared by captain Porter, is in the following words : 
" in that, riioved by a spirit of envy or base motive, he hath, upon 
the Boston station, and within a year, now last past, scandalously 
attempted to take from his superior officer, captain Isaac Hull, 
his good name." The second, " in that he has, during the time, 
and on the station aforesaid, made numerous scandalous and false 
insinuations against the official character and conduct of his su- 
perior officer, capt. Isaac Hull, calculated to stamp his name wit^\ 
opprobrium a»nd infamy." In the second specitication in tlie case 
01 lieutenant Kennon, the accused is charged with " havin;:, with- 
in a year, last past, maliciously used base means for «lefaniins 
my character, to wit: by publishing, or causing to be published, 
in the Norfolk and Portsmouth Herald, a statement, bearing his 
name, containing falsehoods which were calculated to injure my 
character, and which he permitted to remain without being pub- 
licly contradicted, until his attention was drawn to tlie subject, 
by the remarks in a Georgia paper." *« By lepeated attacks mude 
by hira on me, in the public newspapers, and by falsely declaring 
in the Herald, that he never made me a reluctant apology, and 
piiblicty recalling it after lie had obtained all the advantages re- 
sulting from a reluctant apology made to me." ♦• Uy haviug used 
towards rae, in a public print, a term which is seldom applied to 
other than pick-pockets, rogues, gamblers, &c." Surely if these. 
§pecifications are not utterly illegal, from their vagueness and 
generality, from the looseness of their references, and the uncer- 
tainty as to the real ground of accusation, those, now under con- 
sideration, must be beyond reproach. The sufficiency of those 
charges, is established by the authority of captain Porter, who 
drew them — of the court, which tried the accused upon them — 
of the department, which directed such trial, and approved the 
proceedings in both cases. 

The fourth specification is supported by the same high authority. 

The filth admits of reference to precedents to support it e(jual- 
ly unobjectionable. I shall cite but two. In the casfi of captain 
Shaw, already referred to, the accused was found guilty of s» 
much of the eighth specification as alleges "that captain Shaw, 
contrary to his duty as an officer, did expose to view, and suffer 
qjjaplain Cheever Felch and other officers of the navy, to exam- 
ine and peruse his official communications with the Navy Depart- 



an 

ment." For this oftence was he punished. M that be a military 
I oftence, cognizable before, and punishable by a court-martial, 
' how far more reprehensible is it to submit orders arid instructions 
from the government, not merely to one or two brother-officers, 
but to publish them to the world, through the medium of a pam- 
phlet and the public gazettes. I shall trouble the court with a 
reference to but one more authority on this point — it will be found 
in the thirty-fourth and thirty-fifth pages of the report of the 
trial of lieut, Kennon, where it will appear that captain Porter, 
under examination as a witness, expresses his decided opinion, 
that it J3 highly improper to publish orders received, even from a 
superior officer in the service, and that he would not commit su.ch 
an act. 

The foregoing references, as so completely decisive upon ano- 
ther poin*^, raised by the accused on this occasion, viz ; that this 
specification is vicious, inasmuch as it embraces so large a pe- 
riod of time, within which the oftence is charged, to have beets 
committed, that it will be unnecessary to examine that question 
further. In both the cases of lieutenants Abbot and Kennon, 
the oftences are charged to have been committed " within a year 
now last past." In the present case, this specification charges 
the publications to have been made between the first day of Oc- 
tober, 1824, and the fifteenth of June, 1825. If, in the cases ci- 
ted, the specifications were right, in this, they cannot be wrong. 

It will not be denied, that the language of our naval code, is in 
some respects, loose, vague and inaccurate; and that the defects 
of the system are numerous and important. Vague and inaccu- 
rate, however, as it confessedly is, it contains one sweeping clause, 
sufficiently comprehensive, to embrace this charge, anji each and 
every of the specifications under it. " All crimes, committed by 
persons belonging to the navy, which are not specified in the fore- 
going articles, shall be punished according to the laws and cus- 
toms in such cases at sea." This section is a legislative recogni- 
tion, tliat there may be crimes committed by persons belonging 
to the navy, not specially embraced in any of the navy articles; 
and such are to be punished, as I understand the latter clause of 
the section, by the instrumentality and at the discretion of a court- 
martial. Such cases are those in which, to use the language of 
Tvtier, the court assumes the functions "both of legislators and 
judges." 

Before the court shall determine, that the charge and specific 
cations in the present case are vicious, for want ot form and ful- 
ness of detail, I must beg it to pause, and to consider what it is 
that is required. — What if these objections are valid, would be 
requisite to free the proceedings from their force. In the first 
specification, it would be necessary to set out all the letters 
therein referred to by date, being five in number, and some of 
them of considerable length. In the second, the entire pamphlet 
published by the accused, must have been introduced, becauge 
that is specially referred to. In the third, the real proceedings 
of the Court of Inquiry should have been set out, and the vari- 
ances between them and the publication distinctly pointed out, 



2iie 

In the fourth, it would be required that all the remarks, state- 
ments and insinuations, disrespectful to the Secretary and the 
Court of Inquiry, should have been introduced verbatim : And 
in the fifth, that all the papers therein referred to, should appear 
in the charges. Such is the length to which these objections ex- 
tend. 

If this were necessary or even useful in assisting the accused 
in defending himself from the charge, if it were required by po- 
sitive law or enjoined by the practice of Courts Martial, no ob- 
jection to such a requisition ought to be listened to. When 
however the positive law is silent on the subject, when as has 
been shewn, the practice is wholly different, when no one reason 
has been or can be assigned, why this should be done, this Court 
can scarcely hesitate to declare that the ground assumed by the 
accused is wholly untenable. 

It may not be necessary to refer to objections which were in- 
cidentally urged by the counsel when he, to use his own form of 
expression, enunciated his ideas upon this subject, but which are 
not very zealously pressed. It was understood they had been 
waived, but if so, for what purpose they are again and again re- 
curred to, is not distinctly perceived. I allude to the objection 
that the accused was not furnished with a copy of the charges 
upon which he was tobe tried, and with a list of the witnesses 
that would be adduced against him. The accused did intimate 
at the opening of the court when he was arraigned upon this tri- 
al, that he had not been furnished by the government with a copy 
of the charges to which he M^as now called to answer, and did 
solemnly call upon the court to furnish him with such copy. 
It did however appear upon his own exhibition, that he had been 
regularly furnished at the proper time and in proper form, with 
a paper, which, with the exception of two letters in one of the 
words, was a literal transcript of the charges tliat had been read. 
In giving the date of one of the letters alleged to be insubordi- 
nate and disrespectful, the copying clerk had inadvertently da- 
ted it the thirtieth instead of the thirteenth of April. No other 
variance has been, or it is believed can be, discovered. 

As regards the right of the accused to have a list of the wit- 
nesses furnished him, it is wholly denied. That such a doctrine 
is laid down by some of the writers on Courts Martial is conce- 
ded, and probably this practice may prevail in the army to some 
extent, but it is apprehended that it is wholly unknown to the 
navy practice, and the high authority of Sir Charles Morgan, the 
distinguished Judge Advocate General of Great Britain, is deci- 
dedly against it. In p. xii of the advertisement to the 3d. Edit. 
of Tytler, that experienced gentleman says, " I have never un- 
derstood it to be the duty of the Judge A'dvocate in all cases to 
furnish a prisoner, previous to the trial, with the names and de- 
signations of the witnesses, by whose testimony any act objected 
against him is expected to be proved; nor on the other hand, do 
I consider that it is requisite for the prisoner to furnish the Judge 
Advocate with the names of any other witnesses than those whom 
he wishes to be officially summoned. I think such communica- 



213 

tiion might possibly in some instances lead to inconvenience on 
either side." The navy articles are wholly silent upon this sub- 
ject. They require that he shall be furnished with a copy «if the 
charges and specifications, but do not enjoin that he shall be fur- 
nished with a list of the witnesses. At all events when the ob- 
jection is formally presented, it will be time to discuss and de*- 
cide upon its validity. 

Upon the whole 1 submit with great respect to the court my 
clear and unhesitating opinion that each and every one of the 
specifications, as well as the charge, are sufficient both in sub- 
stance and in form ; that they do specify offences of a military 
character for which the accused may be arraigned and tried be- 
fore a Court Martial. 

It is to be regretted that such a discussion should thus prema- 
turely have been required. Every objection now taken could 
have been taken with equal efficacy and propriety in the defence. 
It would then have been analogous to the motion in criminal 
courts to arrest the judgment. The argument into which I have 
thus unexpectedly and with very limited opportunities for re- 
search and consideration been driven, this full and distinct enun- 
ciation of my opinion, and the premature decision of half the 
case by the court, would have been postponed to a more suitable 
period. The course pursued by the accused has however impo- 
sed upon me an arduous and responsible task, and I should feel 
myself unworthy of the situation which I occupy, before this 
^ourt, were I to shrink from the discharge of any duty, however 
unpleasant or however irksome 



214 



REMARKS 



On the decision of the court, prohibiting a direct replij to the 
argument of the Judge Jidvocatii, in answer to the preliminary ex- 
ceptions taken on the part of the accused : and also on the princi- 
pal points, attempted to be established by that argument. 

This decision of the court, and the stran2;e dilemma, in which 
it placed the CoiMmodore, have already been stated. ('rt^ it has 
been seen that though a direct reply, as in the discussion of pre- 
liminary exceptions, was prohibited, y^t it was admitted that the 
argument of these exceptions might be resumed, and pushed, by 
way of reply, to any extent, in the defence: and so, in fact, when 
the general defence came to be delivered, was it done, with(mt 
interruption or objection. The necessity, which certain state- 
ments of theJudge Advocate had imposed upon Com. P. to re-, 
pel what had been there asserted or insinuated, to t!ie prejudice 
of his personal motives and conduct, is set forth in his memorial, 
already before the reader •.(b) and the reasons by which he was 
actuated, in that instance, will be more obvious, when the an- 
swer af the Judge Advocate, comes to be seen r/t extevso ; in 
conncclisn with the coiiimenis upon certain passages of 't, in the 
defence. 

That the situation, in wliich this postponement of a reply till the 
opportiunty should be afforded for it, in the genera! and final 
defence, placed the accused, was altogether unprecedented, and^ 
supposing a real necessity for such a reply to exist, extremely em- 
barrassing, was supposed to be clear and indisputable. 

The riglit tb tlie reply was claimed, as clear upon general prin- 
ciples, and according to all judicial practice and usage: 1st. as 
belon<»^ing to the party who had made the motion, and an oponing 
argument to sustain it: 2dly. as being claimed by that party, 
with tills general right of the proponeM, enlbrced and corrobora- 
ted by particular circumstances, which are usually deemed suffi- 
cient to concede a s/>f'ci(t/ right of reply, to a party not other- 
wise entitled : to wit, the introduction of new matter, and tlve 
citation of numerous aul^horitics, which lie has iiad no opportuni- 
ty to answer. Nothing is more usual than to stop a party from 
the further prosecution of an argument, when the court's o|>in- 
ion is already made up on his side : but, here, serious doubts are 
professed to have been entertained : insomuch as to require the 
assistance of the Attorney General to solve them; and the 
question is to be remitted to his decision; with a partial view of 
the grounds npon wiiich the exceptions of the accused rest; since 
he was to be deprived of tiie benefit of such additional reasons 
and illustrations, as miglit have been advanced, in reply to the 
arguments and authorities of the .ludge Advocate. 

But the essential right to justify the original i;rounds of ex- 
ception, by additional reasons in reply to the answer, put in by 

faj Ante, p. 38-44, 
(h) Ante, p. 40. 



215 

live Judge Ailvoca(e, was not disputed ; — it was distinctly ad- 
mitted, riie time and the occaaion only were objected to: — it' 
he post) jned it till the defence, the accused might then range, 
unconf' jlle'l,over the whole ground. 

Now whether this were any thing more than a practical denial, 
wndera mereiy specious and illusory admission of the right, let 
circumstr iCes decide. 

The question, raisid and argued upon these exceptions, called 
(or A pi lAiminary decision, upon the validity of the 2d charge 
and iis specifications, as exhibiting no accusation of any oft'i;nce 
known to, or cojiuizable under the naval articles of war: a 
question to be decided, upon the terms of the charge and speci- 
fications, without reference to the evidence, to be adduced in sup- 
port of the/ocfs specified : and before the introduction of such evi- 
dence. The defence, for which the argument in support of these 
preliminary exceptions was postponed, could not, in course, be 
delivered, till after the evidence had ajl been produced and ex- 
amined: and alter the decision of the jjreliminarn exceptions: 
and therefijie the decision must necessarily pvcecfe thQ argument , 
the force arid validity of which was the very matter to be deci- 
ded. The argument, at the time to which it was postponed^ 
could, at the utmost, have availed nothing, but to persuade the 
court to reconsider and revei'se its own opinion : and upon what 
princi{)le of justice to the party, convenience to the court, or coa- 
sisteiicv of judicial procedure, the party shall, of predetermin- 
ed purpose, be laid under such disadvantage, is inconceivable. 
'Tis certainly not uncommon for a court to entertain a motion, 
and to listen to arguments, directed to the reconsideration of 
decisions, made after full discussion, and mature deliberation t 
but this is generally the result of extraordinary and accidental 
circumstfinces, of novelty or difficulty in the original question; 
or of (he subsequent suggestion of new and important reasons, 
not before presented to the consideration of the court. But, 
that the party sl.oulil be told, whf^n he ot^'ters his :-easnns, to the 
consideration of the couri, while the question is actually under 
discussion ; "though we aie in great doubt, we cannot hear vou 
now : wait till we have decided: and then we will hear you; 
not to clear up our doubts, but to convince us, if you can, of our 
frror ;" is certainly a novelty in jurisprudence. The argument 
of exceptions to the sufiiciency and legal efi'ect of the terms, hi 
which a criminal cha-rge is couched, was sufficiently awkwaiii 
and misplaced, if not absolutely irregular, under any circuiii • 
stances, when introduced into the defence, upon the trial of the 
general issue, (tr plea of "not guilty:" — but to be so introduced 
alter a deliberate and well considered decision against the ex 
ceptions, would have been still more embarrassing. Com. Por- 
ter therefore determined, as before stated, to abandon the stand, 
which he hati taken, in limine; and to reserve liis objections, or 
such of them as might still be available, ("whether upon priuci - 
jple or by concesslonj uffder thegt.'neral issut^. 



216 

The complaints of the inconveniences and embarrassments, 
arising from the court's being called upon to decide the legal 
sufficiency of the charge, before they entered npon the examina- 
tion of the evidence, were heard with surprise. If the judge ad- 
vocate had rested entirely upon the broad ground, that it was 5 
wholly immaterial, in what terms the accusation was conceived ; : 
whether it imported any off'ence cognizable by a court-martial ; ; 
or gave any notice of the nature of the real charge, and of the e 
facts to be alleged in support of it; or if he had utterly denied J 
the authority of the court to examine and decide the legal suf- • 
ficiency of the accusation, in terminis ; his course would, at least, :, 
have been intelligible. But when it is contended that the excep- ■ 
tions to the legal sufficiency of the accusation, in terminis, were e 
more properly triable and equally available, under the general is- ■ 
sue; — and are then triable in a mode analogous to a motion in 1 
arrest of judgment! rather than to a motion to quash an indict- 
ment; a propositionis enunciated, which is equally perplexing to i 
the professional lawyer, as to the plain man of common sense. 

Upon principles of mere conveniency and consistency, it should I 
seem quite clear, that if the accusation is to fall, at any stage of I 
the procedure, from its own inherent defects and vices, indepen- 
dent of the strength or weakness of the evidence, on which it ' 
rests, it should be discussed and dismissed, in limine, before the 
time and labour of the court shall have been expended, in a fruit- 
less examination of evidence ; which must be utterly nugatory . 
and inconclusive, if there be no valid accusation or charge, to 1 
which it can be applied. Once admit that the validity of the accu- 
sation may, at any stage of the proceeding, be tried by its own 1 
terms; and all evidence, offered under it, be received or excluded, , 
according to the sufficiency of such terms ; and it necessarily fol- 
lows that the most convenient time, and the most consistent with 
all the analogies of judicial practice, for discussing and deciding 
the question, is before the examination of the evidence. 

The complaint, that this discussion had been prematurely / 
forced upon the court; whether it refer to the analogous princi- 
ples of judicial practice, in general, or to such as are supposed I 
to be peculiar to courts-martial, is equally difficult of compre- 
hension. There is no civil court, known to the Roman, British 1 
or our domestic jurisprudence, to which preliminari/ exceptions, . 
in some form, to the sufficiency and validity, in terminis, of the 
pica, bv which either the matter of the complaint or of the de- 
fence is set forth, are not familiar, botli in matters of civil and I 
of criminal judicature : the effect of whicii exceptions, if sus- 
tained, is to quash ihe proceeding, upon an insulated view of the^ 
plea itself; without adverting to the evidence by which it is sus- 
tained. That such a course of practice is familiar to courts-mar- 
tial, both in Britain and in this country, is vouched by the high- 
est authority ; if the actual experience of military men, and the 
notoriety of the thing required any corroboration from authority 
for the well established and well known practice of " dismissiiig 
a charge and throwing it out, altogether, as irrelevant. fa) 

{a) Tytlcr, Macomb, ch. 1, p. 15. 



217 

rhe proposed reference of this discussion to a motion in arrest 
o[ judgment, before a court-martial, by no means diminishes the 
difficulty : but the idea of introducing such a motion, in the rfe- 
fmce, that is, in the trial of i\\t general issue, makes it absolute- 
ly incomprehensible. 

How is a motion in arrest of judgment to be made, before a 
tribunal like a court- martial, the members of which unite, in their 
own persons, the character both of judge and juror ? In tribunals 
where these functions are separately exercised by judges, vvho 
decide the Iniv, and by jurors, who decide the j act j—wh^re 
the first draw the legal consequence, an«! pronounce the judg' 
meut of the law, upon the facts found by the other; where the 
jury, by a distinct verdict, convicts of the fact; and the court, 
upon that fact, passes sentence of condemnation ; why it is all iu 
course, if the frame gf the indictment be thought defective and 
vicious, to interpose a niotion of arrest, between the conviction 
of the jury and the judgment of the court. This is plainly in- 
compatible with the organization and practice of a court-martial : 
which, in the very act of convicting the accused, passes upon 
every question of law and fact involved in the case. Was it 
ever heard of, that a court-martial stopped at that part of its judg- 
ment which finds the prisoner g-wi/fj/ of the charge; in order to 
announce the verdict to him, and call upon him to declare whe- 
ther he had any thing to say, why judgment should not pass against 
him, according to the practice of the civil courts? On the con- 
trary, is not the practice of courts-martial invariable and noto- 
rious, immediately to pass on to the final sentence, after finding 
the prisoner guilty ? — who knows not whether he be acquitted, or 
convicted, till the promulgation of the final sentence. 

When it is considered (hat, according to the practice of all 
courts, tlie general issue involves simply the trial of the truth 
of the facts put in issue; it was sufficiently difli,''(^ilt to conceive 
that any question, depending on the frame and matter of the charge 
or indictment itself, could be entertained : and accordingly the 
counsel for the accused appears to have been entirely aware, how 
much more safe and consonant to the analogies of jurisprudence, 
in general, it was to propound, in limine, his exceptions to the 
terms of the accusation itself. But when he is told that such 
•xceptions may and ought to be taken advantage of, on the trial 
lif the general issuer and then as a motion in arrest of judgments 
such a confusion of ideas ensued, as nothing but some positive 
and overruling authority of law or precedent could settle. 

The exceptions, in this case, were professedly urged, as in the 
nature of the ordinary motion, in a court of common law, to 
quash an indictment ; to which motion, the one, equally tjimiliar 
to courts-martial, to dismiss a charge as irrelevant, is in such 
strict analogy. IJut it is objected that a motion to quash, in a 
court of common law, is entertained only, when the indictment 
presents some of the lighter species of misdemeanors ; but that 
indictments for graver offences are not so seriously disposed of? 
the party being turned over to his motion in arrest of judgment. 
The power and jurisdiction of the court to quash a defective in- 



218 

dictmcnt for any offence, i* not dispute.! ;-'tis a '^^'^ ""^^Jf; ^^J 
T^ractice turnincr upon the discretionary exercise ot the powtrv 
rappU;crto"cases^ufficiently l.ght to ad.nit of ^^^f ^^g 
mode of decision ; distinguished fro.n such as are of so serious 
^character as to require a more delibe.;ate and solenm .nve t^a- 
tion. It may then be pretty clearly inferre.l that th.s distinction 
between the cases, to which the one or the other mode ot excop. 
tion applies, is merely artificial, and, in a great measure, arbit.a- 
ry : depending on the views of expe.liency and convenience, pe- 
culiar to the organization, and regulated by the discretion of par- 
ticular courts. The fact is well known, that the distinction de- 
pends not upon any fundamental and positive law ; but is one ot 
a svstem of rules which have been gradually and successively un- 
folded in practice, as experience, from time to tune, suggested 
the necessity of them, to the discretion of the courts ot law. 
But before this arbitrary distinction, between such cases as are 
light enouMi for a motion to quash, and such as are grave enougli 
to required motion in arrest of judgment, could prevail in t„e 
present question, several postulates must be conceded. 1. Hat 
courts-martial, in the exercise of a like discretion, have also dis- 
tinguished the degrees of military offences, by a scale, graduated 
to the more or less summary modes of deciding upon their char- 
acter and import, as described in the body ot the accusation. 
2. That the sect^nd charge and its specifications, do indicate an 
offence of the graver kind. 3. Ttiat a motion, in arrest of judg- 
ment, or one analogous to it, can prevail in a court-inarlial. AM. 
of which are conceived to be utterly incompatible, either with 
the peculiar constitution, or with the established law and prac- 
tice of such courts. 

It already appears how absolutely incompatible with the con 
stitution and practice of a court martial, is the motion in arre^^t 
of judgment: vi;hich, indeed, one of the judu.e advocate's objec- 
tions against tlie motion to quash or disuiiss the charge, has nuuie 
more palpable ; when he relies upon the injunction, contained ii; 
the judicial oath of the members, not to divulge the sentence ui 
the court, till approved by the proper authority: an objection 
which, if it have any kind of application to the dismissiotioi a 
charge, as irrelevant, must apply with incalculably greater force 
to the disclosure of the conviction, undei'tlie general issue, in or 
der to allow the prisoner to interpose his motion in «r»v.s7,betvveer 
conviction and s(^ntcm-c of condemnation. But, on tlie other hand, 
a preliminary exception to the legal eflect ami suflitiency ot the 
accusation, in termiuis, or a motion to dismiss the charge as ir- 
relevant, is strictly analogous, not only to the motion to quash 
an indictment, to which it has more particularly been assiioilat- 
ed, but to the course of procedure and practice, admitted to pre 
vail in all courts, whether of civil or criminal judicature : where. 
in some form or other, to be determine<l by the constitution and 
modes of practice peculiar to each court, p-eliminary exceptions 
to the form and matter of the accusation or charge itself, are 
univLMsally entertained. 'Tis loss of time and lab(M-, however. 
to be arguing from analogies, however strong in reason and an- 



219 

thority, when we have the clear and ruling authorities, aboye- 
cited.'to prove that it is the actual law and practice of courts- 
martial to dismiss charges, for defects of form and substance. 

The difficulty, from the judicial oath of the members of this 
court, as opposed to the preliminary discussion and determina- 
tion of these exceptions, vanishes at the first reflection.---Is an 
order of the court, dismissing a charge as insufficient or irrele- 
vant in terms, " the sentence of the court ;" the premature 
disclosure of which, is intended to be prevented by the oath f 
And U it be, what necessity is shown for the disclosure of it, tiU 
it be approved by the proper authority? It might be well main- 
tained, upon reason and analogy, that the sentence, intended bj 
the oath, is that of condemnation or acquittal, under the general 
issue. But that question is wholly immaterial to the present ar- 
gument;— for if the preliminary decision, and the final sentence 
be specifically distinguishable, the oath applies not to theforu.er: 
if idenlical. then the rule, prescribed by the oath, is just as prac- 
ticable and operative, under the one torm ot procedure as the 

An objection, considered as novel and extraordinary, now re- 
mains to be noticed. , xi ^ 

After the Judge Advocate had undertaken to show that a mo- 
tion to quash, was precluded by the rule of practice, adopted in 
the cominonlaw courts; which admitted of such a motion, only 
in a particular class of offences ; after arguing that the motionin 
arrest of iudgmeut, was the analogous and proper remedy, tor 
the alleged defects in the second branch of tlie accusation : though 
he had utterlv failed to advert to any analogy between the de- 
grees of the offences, treated in the courts of common law, as 
oroper subiects for either motion, and military offences : yet it 
was supposed that he would have been content to set aside the 
motion to dismiss the charge; and to turn t»^? P^'-^-^^;;^'^ 
to his motionin arrest of judgment—Far from |t : he bene- 
fit of neither motion is allowed : but it is contended that these 
exceptiuHS, urged, as they were, expressly and professedly as m 
the nature of a preliminary motion to quash or dismiss the in- 
dictment or charge, shall be converted, by the mere act of the 
court, into a demurrer; and be followed by all the strict and 
technical consequences of a demurrer, in a court of common laiv: 
in s<. fur as that if they be overruled, the act ot propounding and 
maintaining them shaU be held as a conclusive admission of the 
fact and i1 is even mutter of serious doubt, whether this conse- 
quence is notsu imperiously demanded by the law, as that it is 
m, in the power of t e law-officer of the court, to whom the comiuc 
of the prLcution is entrusted, to waive such consequence ; and 
admit the oarty to plead to issue. , u i 

H w Lfy anub.jry, between these exceptions and such a de- 
muri-er. m^y be b^ou^ht about, is not ex,la.ned. and is tlmugh 
to be wholly inexplicable. No authority "P/'"'"' f. > ^^f^' ^J 
the practice of courts martial, has the remotest «l "^";" ^" ^"^ 
such form of pleading as a demurrer, A -y other p lea an Uie 
general issue of not guilty, is extremely rare: though the pleas 



220 



of a former acquittal or conviction of tlie same ollcnce, of a par- 
don, and to the jurisdiction, are recognized as admissible 
before a court martial. ('n^ 

A techical demurrer, to be followed, if overruled in law, by the 
consequence of a conclusive admission of the fact, is peculiar 
to the practice of the courts of common law; and, it is believed, 
has no precedent or analon;y in the practice of any other courts, 
or in the rules of any other system of jurisprudence. In the 
courts of the civil or Roman law, a form of proceeding, giving 
to the party every advantage of a demurrer, was used under the 
name of exceptions ; which were ciihcv peremptory or declinatory ^ 
according as they went to the substance or the form of the action ; 
or were followed by an absolute, or dilatory judgment. But if 
such exceptions were overruled, they were never held as admis- 
sions of the fact ; the party excepting was still permitted to go 
on to the contestation of suit ; which was equivalent to the geyi- 
eral issue in courts of common law ; and then the whole merits 
were discussed. So the courts of equity, which both in their 
forms of procedure and principles of jurisprudence, had been mo- 
delled more after the civil than the common law, adopted the 
form and the name of the demurrer ; but discharged of its com- 
mon law-consequence, of standing as a conclusive admission of 
the fact, when overruled in point of law: so that, under the name 
of a demurrer, the exceptions, peremptory or declinatory, in the 
courts of the civil law, are essentially preserved ; and the demur- 
rant is left at large, in his answer, upon all matters of fact. Now 
in courts-martial, where demurrers, as a form of pleading, are 
wholly unknown, it must be extremely difficult to find any analo- 
gy, which shall annex their legal consequences to exceptions. 
bo in the published state-trials before the courts of session & justi- 
ciary in Scotland, where the civil law prevails, we find the advo- 
cates for the pannel, or accused, ;?^ea<itK^ to the libel, before they 
join issue on the fact ; and when their plea to the libel, ("analogous 

to the exceptions of the civilians, and to the demurrer of the common 
lawyers,; is overruled, they still go on to plead to the fact. That 
the accused, in all courts, and under all systems, should have the 
means and opportunity^, in some form, to question the leoal suf- 
ficiency of the charge itself, is indispensable to the due adminis- 
tration of justice; and that, in courts-martial, which are supposed 
by Tytler, tobe more analogous, in their constitution and forms of 
procedure, to the courts of the civil than of the common law, 
such exceptions should be admitted upon the terms usually prac- 
tised in the great majority of judicial tribunals, rather than adopt 
the narrow and technical rules of practice peculiar to any one 
Bet of courts, is but reasonable. 

The question, indeed, should be considered as settled by the 
tact, that a demurrer has never been admitted nor mentioned 
among the pleas available before a court martial : and. in truth 
demurrers to indictments,hnve fallen into disuse ; since the same 
advantages may be taken, as well in the courts of common law as 

raj Adye. pt. 2. ch, l\p.n8. 



221 

in courts martial, by the more summary motion <o quash or His- 
■iniss the indictment, or charge, or to arrest the judgment ; with- 
out any danger of being concluded to the fact, if found to be mis- 
taken in the law. Even in the common law-courts, this is, by 
no means, admitted as a well settled principle, in criminal cases ; 
great authorities have differed on the point; and it mio^ht well be 
maintained, that the weight of reason and authority was against 
the extension of the strict and technical rule, from mere ques- 
tions of fro/7erij/ to criminal prosecutions. Sir W. Blackstone 
(4 com. ch. 26, p. 333-4^ speaking of the differences of opinion 
upon this point, says, " Some have held, fa) that if, on demurrer, 
the point of law be adjudged against the prisoner, he shall have 
judgment and execution, as \f convicted by verdict. But this is 
denied by others,(b) who hold that, in such case, he shall be di - 
rected and received to plead the general issue, not guilty, after 
a demurrer determined against him." The author then goes on 
to argue that the latter opinion is more reasonable, and more 
conformable to the principles of criminal judicature, in analo- 
gous instances. He remarks, however, that upon this doubt, de- 
murrers to indictments are seldom used. The distinction be- 
tween civil actions and criminal prosecutions, is clearly establish- 
ed, in respect of special pleas in bar; as aiiter foits acquit, 
autev foits convict, pardon, &c. &c. which, in the one case, are 
conclusive if found against the defendant; but not in the other, 
against the prisoner. This is fully and perspicuously explained 
by the same author. 

" Before I conclude this head of special pleas in bar, it will be 
necessary once more to observe; that though in civil actions 
when a man has his election what plea in bar to make, he is con- 
cluded by that plea, and cannot resort to another if that be deter- 
mined against him ; (as if, in an action of debt, the defendant 
pleads a general release, and no such release can be proved, he 
cannot afterwards plead the general issue, nil debet, as he might 
at first: for he has made his election what plea to abide by, and 
it was his own folly to choose a rotten defence ;) though, I say, 
this strictness is observed in civil actions, quia interest reipublicx 
ut sit finis litiitm : yet in criminal prosecutions, in favorem vitae, 
as well upoji appeal as indictment, when a prisoner's plea in 
bar is found against him upon issue tried by a jury, or adjudged 
against him in point of law by the court ; still he shall not be con- 
cluded or convicted thereon, but shall have judgment of respon- 
deat ouster, and may plead over to the felonj the general issue, 
not guilty. For the law allows many pleas, by which a pris- 
oner may escape death ; but only one plea in consequence where- 
of it can be inflicted ; viz: on the general issue, after an impar- 
tial examination and decision of the facts, by the unanimous ver 

diet of a jury .'Yc^ 

It would have been strange, indeed, if courts martial, which 
are exclusively courts of criminal judicature, and which had not, 

(a^ 2 Hal, P. C. 257. (.h) 2 Hawk. P. C, 334 

■cj 4 Black. Com. ch. 26. p. 338, 



222 



ill tueir onsinal constitution, been shackled wUli tlie same tcclim 
cal forms of plcadin- an.l lulo^ of practice, wluch the c.M,un.., 
law cou;lsha%ebeen\M>deavorii.g to shako olV, should huvegriitii 
itouslv adopted thetn ; and have pushed them oven to e>Ltreines. 
from uhich the ...ore liberal and imp.oved piactice ol the otUe. 
courts had .-eceded. Accord...Klv ^ve find that all these hbe.^il 
and rnlii^htened rules, so ablv and pe.spicuously expounded by 
Sir Wi;ham lilack>tone. haCe been specifically recognized and 
adopted as the law and practice of coui ts-.nartuil.Cc; _ 

But the diilicultv, thus giatuitously rai.ed m u lit i ct pahon Ot 
the court's decision up(»n these exceptions, Nvas the more sur- 
prising, since nvi o..e. to whmn the objection ilsoU couiil liav«. ; 
occurred, can be ignorant, how essentially the long pre\ailing = 
practice of me courts of law has relaxed the ^tlictnoss ot thq • 
ancient rule, even in cii'il actions ; and gives the party the lull 
benefit of his defence upon the merits, by allowing him. even; 
after the point of law has been decided against him, to withdraw' 
his demurier, and plead to issue. Yet. it seems, a cmrrmarfiat, 
which, in its original constitution had not been trammelled with 
these technical forms of special pleading, was under a necessity: 
tt) deduce and assimilate thei;- harshest and nari-owest principles, 
from far fetched and sMained analogies, to its own p.-cu lar sys- 
trm of iurisi)rudence : to seize upon the rt/)j\vs Juris, which the 
civil courts had abandoned -.—nay more,— alter having rejected^ 
the meliorations, by which these rigors had been mitigated by 
the -nadnal progress of improvement in judicial p..lity, in the 
cour-ts to which they weie indigenous, to be so tenacious o» them, 
as to refuse the p'rivilejie of an amendment ot the pleadings, 
even with the express coimut of the (.nly party, entitled to take 
advantage of any slip in pleading, or mistake ot the law. huch, 
at least, was one' of the questions gravely propounded lo the at- 
torney-general of the United States. 

Bin. after all, the question which, at the first blush, produced 
such ania/.ement. returns with unresolve«l perplexity ; — by what 
species of dialectic .alchemy, exceptions, taken expressly as in 
the nature of a motion to (|uash or dismiss an indictment or 
charge, had been elaborated into a technical (f(iK»»-rt'r to an in- 
dictment. To say that a motion to quash an indictment, tor any 
of a certain specified class of oftences, as treason, felony, 6LC.ik,c. 
is not entertained in a court of law ; because it is not expeilieiit 
to dispose of such otiences, by so summary a piocedure, but to 
turn the partv over to his motion in arrest of judgment ; is only 
to sav llKit the oftence described in the second charge and it* spe- 
cifications, 13 identical, or exactly etjual, in degree, with the 
pnumeiated species of oftences punishable in a court ol law,f.-u.n 
which the motion to quash an indictment isexclutled ; and, there- 
fore, that the present motion should have been simi)ly overniled ; 
and the question referre<l to some more solemn mode ot decision. 
For certain it is, that the analogy, now contoiuleil tor, betwrea 
a motion to quash, ..nd a demurier to an indictment, holds not 



Vid. \vJvc Pt. •?. eh •:'. 



223 

in the courts of law: since, according; to tlie authority cited, if 
the hioliiui he made in a case, invohin^ any oJ the hij^her spe- 
cies of ollencea, it is Kiin|ily reject«'d ; siiH leaving open to the 
party, tlie various other remedies ol pica, deniurier, or motion 
in arrest of jiidy;ment. To gay that all this results from the 
anaht^ies o( jurisprudence, before deduced by the counsel for 
the accused, in siipport of his exceptions, otdy sup|died new mat- 
ter of astonishment: because the reasons anil authorities, upon 
ivhith the exceptions had been founded, were introduced by the 
counsel, with an expi ess disavowal of all ''the nice and abiLru^e 
',su't>tletieis,and the uieiely technical rules, peculiar tu some branch- 
'e» iif piactice in the coirris of comr.ii.n law;" and of all "the 
'rules or axioms of the cLl-'U courts," but sucfi as had been clia- 
flucttij invoked to the {jracticeai "viililarif tribunals ;" or such 
beinj^ founded in the iinriiiUuhle pr inrijdes of right and jus- 
f, Wire necessarily common to both ; and could not be dis- 
1<. iis»'d v\itli, by eitlter, without ( onsij^^nin;;; the suljjects of its 
jMi-idictmn to an unfjuaiified ti/runny. Accordin^ily, there i- not 
li-uud, in the argument of the counsel for the accused, after a 
ciitital review of the same, fr(»m be^^inning to end, a single pro- 
, posiliocj of law, cited in suftp'irt of the exceptions, from any but 
a[)proved authorities upon the law and practice oi courts martial 
< ( lusively : and not one, but wiiat is l>oine outby such aathori- 
t'.'-, expifss and positive to th*- point. 

II tile skill of liie arttoriiey -general ('perfe<:t as talent, learning 
and experience have made it,) could have unravelled the tangled 
skein <if all thi-> analogical ratiocination, 'tis much doubted whe- 
ther an} other were competent to the task ; and if is much to be 
. regretted that the object of a reference, so judiciously made, 
should have failed. 

Now, levertingto thp leading principles, upon which these 
excepfi(tns and tiie opposing aigument-> of the judge advocate 
', turn, the whole may be resohcd into two quesliohs: Ist. The 
y jurisdiclioa of a naval court-martial ; and the nature of the of- 
fences cognizable by it : 2dly. The tern»s in which it is neces- 
^ 8ary to charge and to specify such offences ; in order to fulfil 
^ the two loid eiHl, of bringing the matter of the accusation with- 
;. in the limited cognizance of the court; and, at the same time, 
of informing the prisoner, with due precision atid minuteness, of 
the nature of the accusation, wiiich he is to answer, and of the 
puticular fatts to be adduced in support of it. 

I. The very plain and undeiiiaWe proposition [^as, at the first 
[ blush, it appf'ared to bej that the jurisdiction of the court was 
necessarily limited to the particular class of persons and offences, 
( liunieiated and described in the naval articles of war; the rea- 
•■oiiablfness .and necessity of the rule, and the authorities, by 
vshi(li it is recognized and eJifoiced, have been all fully deve- 
loped and explained by the counsel for the accused. The oppo- 
'; site proposition, fwhich appears, indeed, to have been, in some 
degiee, anticipated, but certainly not to the extent, in which it 
was allerward» enuneitedj is that the jurisdiction of a court- 
muitial is limited (Mil v, iu respect of the jperstjns subject to it; 



324 

but that, as to offenceny it is unlimited; and may exercise a sort of 
legislative discretion to punish any action of a person in a military 
capacity, as an offence; if, in the opinion of the court, it tend to 
the prejudice of good order, subordination and discipline. Fortius 
Idttcr proposition, the authority of a writer, frequently quoted in 
tlie course of the discussion, and cited as the main pillar of the 
opposite rule (in so far as it depended, at all, upon authority) laid 
down by the counsel for the accused, is relied upon by the judge 
adv(»catV. This writer is quoted, as saying, (hat, though no 
crime, which is mentioned and defined in the articles of war, 
is punishable, in any other 7?iannpr than in that specially directed 
by those articles ; yet it does not follow that there are no crimes 
punishable by a court-martial but such as are enumerated and 
declared to be punishable by the articles of war: and further, 
that there are offences, which admit of no precise definition ; and 
yet, in the military profession, are of the most serious conse- 
quence, as weakening and subverting that principle of honor, 
on which the proper discipline of the army must materially de- 
pend : that, of these, a court-martial, which is, in the highest 
sense a court of honor, are theinselves appointed the sole judg- 
es, or rather the legislators; for it is in their breasts to define 
the crime, as well as to award the punishment. (sj Such phrases 
arc indeed to be found in the passages cited from the essay of 
Mr. Tytler; but they are wholly misapplied, when detached 
from the context, and propounded as generalized rules of law. 
As such, it was, with the utmost surprise, that they were heard 
cited, as upon the authority of Mr. Tytler's essay; so utterly 
inconsistent as they are with the rules so distinctly and repeat- 
edly propounded by himself, and by three other autliors of equal 
authority ; two British, and one American. That " the crinieii 
cognizable by a court-martial are pointed out by the mutiny-act, 
which everii man is or ought to be acquainted with :" that " mar- 
tial law is laid down in so plain and simple a manner, that every 
military man is or ought to be acquainted with what are thereby 
deemed crimes :'''' that, '• in the accusation or charge, the offence 
must be set out with certainty and precision, so as to bring it, 
clearbj and unequivocally, within the terms of the law or articles 
of war by which it is made punishable;" are the terms of the 
rule, as cited from Mr. Tytler and the three other authorities, 
who have all enunciated it, with undeviating unanimity .(^f^ 

These wholesome and necessary rules are particularly illus- 
trateil and enforced both by Mr. Tytler himself, and by general 
Macomb, who respectively assign the reason why it is not neces- 
sary, in the body of the charge, to refer to the particular article 
of war, supposed to be violated: which is that "the specification 
of the criminal act itself is sufficient intimation to the prisoner, 
of the law by which it is punished; and the prisoner may always 
dispute the J't'^effl/ic?/ of the charge, and call upon the prosecutor 

is) Tytler, p. 107-8-9. 

(0 Adve, p. 62, 225, & 127-8. 1 M« Arthur, p. 23, s. 5. 2 id. p. 6—12. 
Tytler, p. 206-18. jMacomb, p. 61-8. 



225 

}^ to sliow in what respect it falls under the prohibilion of the law.^^ 
In the advertisement to the 3d edition of Mr. Tytier's essaVj 
are found various remarks by the late Sir C. Morgan, judge ad- 
vocate general of England, upon certain passages of the essay, 
which he thought required either correction or illustratioUo 
Among others, he remarks upo« what is said, relative to the pro- 
priety of referring, in the charge, to the particular article of war, 
supposed to be violated : in which he agrees with Mr. Tytler, that 
it is not necessary; but with one exception; and that is where the of- 
fence is against any article of war, which is mandatory of certain du- 
ties, it is necessary expressly to refer to the particular article, in the 
charge: otherwise where it is against an article merely prohibitory. 
In explaining the distinction, in this respect, between mandatory 
and prohibitory articles, he most clearly adopts and confirms the( 
general doctrine and rule, so emphatically and unanimously laid 
down by Mr. Tytler and the other authorities, as to the limita- 
tions of military jurisdiction. Upon this point he remarks, that 
it is not expedient to express a crime to be in breach of the arti- 
cles of war, unless it be of such, as dire mandatory of certain du- 
ties ; that the finding of the prisoner guilty, implies that he is 
punishable by some or other of the articles of war: that it is not 
necessary, in every case, but in very few, to set forth the article, 
on which the court rest their judgment ; but it certainly is proper 
that the court should be satisfied that the\r judf:;ment is warrant-^ 
ed by some article oi we^r.t 

Well might it have been presumed, therefore, that the text of 
Mr. Tytler had been wrested from its proper connection And sub- 
ject, by which the limitations and the application of the passages 
quoted should have been determined; when he is represented 
as ascribing this unlimited jurisdiction to courts-martial, of de- 
fining, at pleasure, what acts shall be added to the enumerated 
list of offences, punishable under the articles of war; and of 
legislating on the important subject of crimes and punishments. 
Accordingly, upon reference to the context, we find the whole 
clearly and rationally explained. In the first passage, which 
admits the existence of military " crimes punishable by a court- 
martial, and not enumerated and declared to be punishable by 
the articles of Jt^ar," reference is expressly had to the peculiar 
power granted to the crown, by the mutiny-act, to make and issue 
ref^ulations for the army, independent of the established articles 
of^war ; and having all the binding force and effect of military 
law : with certain limitations as to the extent of the punishment^ 
that may be inflicted under such regulations. The same matter 
IS more fully and clearly explained by Mr. M' Arthur ; who, in 
his treatise, takes a cou.parative view of military law, as applied 
both to the military and naval establishments of Britain. He 
shows that, while the nai^aUrticles of war have been established 
by successive acts of parliament, from the reign of Charles the 
Id. to that of George the 3d, and have been digested w^^h unyiiu- 

♦ Tytler, 216-17. Macomb, 67-8. 

t Vi4, Adv to the 3d editiou of Tytler, p. 19. 

59 



I 



226 

al care and system ; while they are irrep<*alable ami unalterablcj 
but by the authority of parliament; anil eitumerate and define 
all offences cognizable under them ; with the appropriate puuisli- 
ments annexed to them : there is this curious anomaly in tespcct 
to the army ; which is governed by articles of war, not institut- 
ed by any act of parliament; but at the discretion of the crown ; 
and repealable or alterable at the pleasure of the crown : besides 
the general power of the crown to superadd the penal regula- 
tions, just mentioned. In this respect, the author very justly 
expatiates upon the advantage which the seamen, in the British 
service, have over their brethren in the land-service. (u) 

The second passage, cited from Mr. Ty tier's essay (p. 109j 
to prove the legislative power of courts-martial, as courts of ho- 
nor, to define the crime and award the punishment, is erjually 
misapplied to the present argument; and such misappllcatiun is 
clear from the context : though, even, as it stands so connectt'd, 
its accuracy and precision cannot be entirely defe'nded. He re- 
fers these terms expressly to some peculiar and special provi 
sions, found both in th^g military and navnl codes of Britain; 
but not, in our own naval code : the author, by no means, intends 
it as the enunciation of a general rule or maxim of military law, 
but as the result of certain special enactments; which, it may 
be remarked, fall somewhat short of the sweeping effect which 
he ascribes to them. The p-articular provisions, to which he re- 
fers, are, 1st, the article of war, which punishes conunigsioned 
officers, convicted of "behaving in a scandalous, infamous man- 
ner, such as is unbecoming the character of an ollicer and a gen- 
tleman :" 2dly, the 23d section of the mutiny-act, makln;^ It 
*' lawful for courts-martial to inflict corporal punishment, not 
extending to life or limb, on any soldier, for immo»-((litie.^, viis- 
behaviour, or neglect of daty.^' The same provisions are com- 
mented on, by Mc Arthur; who, with more accuracy and precision, 
both of conception and language, explains them, as giving to 
courts-martial a wide discretion, not to define by a logiblative 
act, new oiFences, but to discriminate the shades of guilt : and, 
as it relates to the article by which scandalous and infan-.ous be- 
haviour in a commissioned officer, is punished, it is furiiier ex- 
plained that the court should discriminate between such actions 
as come up to that standard of moral turpitude, and such, as, 
however improper and blameable, fall below it: being cognizablii 
by a court-martial, in the orre case, and not in the oUier/.r} 
'fhese sweeping expressions of Mr. Tyller are further counte- 
nanced by a most extraordinary article of tlie British miliiary 
code; from which it has b^-en tran.splantcd into our own militarij 
code: but not recognized in the Biitish naval code; nor, in the 
remotest degree, approximated by any article of our 7taval code. 
It authorizes military courts martial to take cognizance of ait 
crimes, not capital, and of all disorders and neglects, wliich offi- 
cers and soldiers may be guilty of, to the irejudice of good order 

s l!*pS:i-|^'^*"'' '■°'" *' ''^- ^- '• ^' ^'^' ^- P- ^^' ^^' 2^' ^ 25. and ch. 4. 
CxJ Vid. 1 M' Arthur, ch. 4, s. 1. p, 42. 2 id. ch. 8. s. 9. p. 297. 



227 

ami nuhtai V (liscipline', which are not enumerated in the fore" 
going articles ; and t<» punish them at discretion-X 

Now, a very considerable discretion, resulting from the vague- 
ness and generality of the terms, in which certain military of- 
fences were described by the articles of war, and from the power 
to inflict optional punishments, has been conceded, by the coun- 
sel furtive accustd. to courts martial. But it was explained to 
be a sound discretion ; instructed by the law, and operating 
through the law : and essentially different from a legislative pow- 
er to punish offences, not classed and specified by the articles of 
war. For instance, if an officer be charged with contempt, or 
disrespect; or with contemptuous or disrespectful words ; or 
with scandalous, infamous behaviour; or with conduct iinbecom- 
iijo- an officer, &c. the court must exercise a sound discretion, 
in'tliscriminating the moral and legal character of the particular 
acts, charged and proved as coming uwler any of these den,<mi- 
nations ()f^off^■nce : it is, nevertheless, absolutely bound by the 
leo-al definition of the offence, however general ; and, before con- 
viction or punishment could follow, it must judicially determine 
the words or act?, to be contemptuous or disrespectful, or scanda- 
lous, and infamous, or unbecon»ing, &c. and that, upon no in/gri'or 
species of inimorality, could it judicially animadvert. So that, in 
effect, thecuiirt was exercising the ordinary function of expoun- 
ding the true intent and operation of a statute, from general or 
(l(!ubtrul ternis : a function only rendered SO much the more dif- 
ficult and perplexing, as the terms were vague or doubtful: and, 
tlnuigh the ac^\ that constitute the off'ence, were not defined by 
the law, yet the offence, as a species, was defined : and the court 
was bound by that definition. It was also admitted, that, in so 
far as the general heads of offence, laid down in the articles 01 
war embraced aggravated, ihougli undefined misconduct or im- 
nvoralities, the court, in the exercise of that soutul discretion, Irjr 
which the moral character of actions was to be determined, 
mi^ht be \iewed, as, in some sort, a court of /to7ior; because the 
actions to be animadverted on, were to be judged by rulps of hon- 
or and not by strict legal definitions ; but in so judging them. 
itm court was absolutely bound by the law, to take cognirance 
only of such improprieties as amounted to the degree of moral 
turpitude required by the law. The court, 'tis certain, had the 
«oK'('r to adjudge an) tiling scandalous and infamous; but then 
its ^ult• mn iud-ment must be, and that upon the responsibility ot 
it.; iudicial character and oath, that the act was scandalous, inta- 
uuL, 6lc. If any inferior deuree or lighter shade of miscon- 
du. t or inunoralitv should be so determined, it must rest upon 
the conscience ol'the court, as a misjudg.nent, and an abuse ot 
theluv. In short, the law had, in general terms defined the 
species the ciuality and degree of the offence; and .t was the du- 
ty of ll>"- coult, belme it condemned or punished, to see tha the 
fads came up to the legal definition; ample as was the field ol 

,„rUish article of War. s. 20. a 3 Adye p 164 Jid^^^^^^^ .nd .nicies 
■t: Uic ..•o\cnuncat of the armies ot the Umtea States, art. v. . 



S28 

judgment and discretion, in respect of (he infinite vaiie(y of ac- 
tions, and the nice and diversified shades of their moral charac- 
ter, which might be embraced in the general terms of the defi- 
nition. It has been remarked, that the only part of our naval 
code from which this function of a court of honor, can be, in any 
sense, inferred, is the third naval article of war; which aftei 
enumerating, among the heads of offence, punishable by it, op- 
pression, cruelty, fraud, &c. ends with the sweeping clause of 
•• any other sconrfa/oMs conduct, tending to the destruction of 
good morals.'Yfl^ The more vague and general description of 
"immoralities, misbehaviour, disorders, and neglects," punisha- 
ble in Britain, under the mutiny-act and articles of war ; or of 
"conduct unbecoming an officer and a gentleman," punisliable 
under the mirifary articles of war in tliis country, are wholly 
omitted from our naval code: of which the 3(1, modelled after 
the Sd of the British naval articles,('6j is stated to be the only 
one that gives any pretence whatever, for a naval co-irt martial 
in this country, to assume a character approximating that of 
a court of /lonor. But, upon the principles, already laid down, 
it was conceived to be clear that this court, as a court of honor, 
judging the moral character of actions under tliis article, could 
take no cognizance of any that fell short of the aggravated de- 
"'ree of misconduct supposed by the article: namely, '• scnnrfa- 
lous conduct, tending tpthe destruction of good morals ;" and, at 
least, of as grave import, as the preceding enumeration of " op- 
pression, cruelty, fraud, &c. 

But after all, a notable discovery has, it seems, been made in 
the body of our naval code itself, of a clear and express warrant 
for this legislative faculty to define and punish offences, at the 
discretion of a court martial. The article (being the 52d) from 
which this sweeping authority is deduced, declares that "all 
crimes committed by persons belonging to the navy, which are 
not specified in the foregoing articles, shall be jninished according 
io the laws and customs, in such cases at sen." This is copied, 
with a slight variation of phrase, from the 36th of the British na- 
val articles ; which in the concluding member of the sentence, 
speaks of " the laws and customs used at sea."('cj 'Tis wonder- 
ful that it should have escaped observation, how unlikely it was 
that the article could have had any relation to the powers or ju- 
risdiction of courts martial ; since all the autliois, who have with 
more or less of labor and minuteness, treated of the law and 
practice of such courts, or of military law in general, have pre- 
served an absolute silence on the efibct of tliis article. From 
that circumstance, connected with the very unusual and almost 
singular omission, in the body of the article, of any reference to 
a court martial, the inference should have been quite obvious, if 
it had been at all doubtful from the terms, that it alluded to 
crimes not cognizable by such court. What instance can be 
produced of a charge exhibited or tried under that article, either 

fa J Laws U. S. vol. 3. p, 351. 

fbj Vid. 1 McArthur, app. No. 1. p. 325. 

CO Vid. 1 McArthur, .npp. No. 1, p. 536 



HI Britain or in tiiis country ? — 'Tis impossible, but such a rbaro-e 
must be held as senseless or absurd. But if it were otiiervvise, 
how does it brin^ us to the conclusion which it is cited to prove; 
namely, that the court may "assume the function both of le- 
gislators and judges'^'' — It communicates no power or authori- 
ty to any tribunal or person whatever, either to define the crime 
or to prescribe the punishment : but, as a mere declaratory law, 
simply denounces certain crimes, as being already delined and 
punishable, according to certain known and established rules, de- 
signated as " the laws and customs used at sea." Suppose these 
to be unwritten laws ; a sort of common law of the navy; con- 
tradistinguished from its statute law, as comprised in the naval 
articles of war : they are, nevertheless, supposed to be fixed, 
known and obligatory: and this court, if it receive any enlarge- 
ment of jurisdiction from them, receives it only of such crimes 
as are punished by them. These laws and customs must, in that 
case, be proved and ascertained ; or known to the breasts of the 
court; as denouncing the criminality and the punishment of the 
acts charged and specified. It these laws and customs be known 
to the judge advocate, or to the court, let them be expounded, and 
applied to the terms of the charge and specifications : if unknown, 
let old and experienced commanders, versed in the traditionary 
lore of marine law, be examined to identify and explain them. 
They must be known before any act can be punished, as an of- 
fence against them : in the absence of such knovvledire, they can- 
not be supplied by any discretion, judicial or legislative, in this 
court. 

An illustration (which certainly we do not clearly comprehend^ 
seems to have been drawn from the opwation of the common 
laiv, as a penal code, competent to define and punish murder and 
'other crimes, without the help of statute-law : as if any objection 
or argument, urged on the part of the accused, had rested upon 
any distinction founded in the form ov name of the taw, by \vhicl» 
the oftence was supposed to be created and punished. All that 
probably was, of could have beeii intended by such argument or 
objection, was to insist that some fixed and authoritative law or 
rule, so creating and punishing the offence, should be shown : 
whether in the form of a prescriptive unwritten law. or of a more 
recent and positive enactment, must have been held immateiial : 
though certainly there can be no pretence for claiming 7)i/7?7ar?/ 
cognizance of offences at connnon /n 10. What argument maybe 
deduced from the punishment of otiences at common law, or 
from any analogy in the jurisdiction of its courts, to tlie assump- 
tion of a legislative juris.diction, over crimes and j)unishments, 
by a court-martial, is by no means obvious. I'lie analogy is, in- 
deed, wholly against the argument, for which it has been cited : 
the coanmon law being just as positive, fixed and limited a rule 
of conduct, as the statute-law. The very fact of the co-exis- 
tence of the two systems proves that the courts arrogate no ex- 
tension of jurisdiction, bordering on legislative discretion, froia 
the unwritten or prescriptive authority of (he common law: bivt, 
on the contrary; when the public good requires any innovation oa 



230 

tlic establishp^l and defined boundaries of the common law, or 
any extension or tnodirication id' the jijiisdictjoii of its courts, 
a recourse tfl the Icgisliiturc, lu supplj its defects, by statnforj 
enactment, becomes necessary. 

Then, if there be a comuion law of the nary, implied by the»p. 
* lavs and customs used at sea," let it be exemplifii^d, and ap-- 
plied to the case, with the same certainty and precision, as the. 
common law to niurder, or otlier oifonces defined and punished 
by it. 

but, in truth, this 32d article of our naval code, refers not to 
any crimes punishable by a court-martial, or- at ail in the na- 
ture of military crimes. Its sole scope and en<l were simply to 
declare ('uhat perhaps would have been surticiently clear witli- 
out \i,) tliat all persons belonging to the navy should be amena- 
ble to the law, precisely as persons in civil capacities, for all. 
crimes committed on the higii seas ; other than such as had been 
expressly constituted nulitary crimes; w subjected to the cog- 
nizance of a cuurt-m;irtial. iso far the scope and end of this 
article sustain and iilustiute the rule contended for; by which 
the jurisdiction of this court is limited to the crimes and pun- 
ishments enumerated and desciibed in the naval articles of war 
Whether this article refer to crimes cogfsi/.uble by a naval court- 
martial, or otherwise, it can have n<)tii!ni5 to do with any of tiie 
matters specified under the second charge : which all relate ex- 
clusively to transactions on shore; in tlie heart of the country ; 
and wholly uncitnnectetl with any routine of the naval service. 

11. Having thus disposed of t!ie fjuestion, relative to the na- 
ture and thclimits of ihcjurifidicHun of courls-maifial, we come 
to the second general questioit: namely, the frame an<l substan- 
tial requisites of the charge and specifications, proper to bring 
the matter of the accurMi'iim within the tiiuiteil co^niz,ance of 
the court; and to put ti.e |;;isoner to answer. This resolves it- 
self into tv.'o quesiions, coutorn^tbte to the given ends and pur- 
poses, whicii determine the Irauje <(!" the accusation : 1st. whe- 
ther the accusation do, in ternifi, set out and <lescribe an onence 
within t:>e limited togniAance o( the court : ^Li. wiiethcr it do so, 
■viih such «pe 'iticntions of facts and circumsiance>, as to inform 
the prisoner, vith the requisite precision and iuiouleness, (d' the 
particular tacts to be adduced against him. 

1. As t») the sutUciency of the accusation, in ter minis, to 
charge the accused with any offence cognizable by this court, it 
was iield liable to two objections: 1st. as being utterly deltctive 
of the requisite pi(?cis!<m u( language, and appropriateness of 
terms, to convey any distinct pi oposition, or intelligible idea ol 
any oiTence legal or moral : 2dly, as not describing, in so far as 
the terms were intelligible, any offence within the purview ol 
the naval articles oi" war. 1st. As to tlie propriety and signiii- 
oancy of t)ic terms, in which the second ch.irgf. is couche<l, the 
analysis alieady in.'ide of them ; and t!ie niiinifest failure to ex- 
pound, from them, any definite meaning ; far less a |)iecist' ac- 
ciisaiiun of ;itiy specitic act, punishable umler liie naval articles 
>f war, leave room but lor a law additional rem rks, to explaia 



2.31 



or JMsfiTy (he original ground ( f objccHos : vvhicii, on this point, 
piiiui|»ully rejiaided the graimiiatical and legal sigiiii'u ancy ot 
the teitii.s "insubordinate conduct," as iinpufed to ;»n oflicer of 
the navy ; and " insuboidinate and disiespectfu! charricter,^^ as 
applied to his Idters. The ohjections, founded on the misappli- 
cation ill' these teiins, have been characterised as a puerile in- 
dulgence of the ifiost futile and reprehensible species ol "verbal 
criticism" or " iihilolo^i;ical critieisui ;'' and uf^ "a specimen »( 
verbal criticism uiore suitable ds an appendage to the diversions 
of Parley, than to the proceedings o» a court nuutial." How 
appropriately or justly these terms bespeak the genuine charac- 
t<M- ot rite ohjectiuns taken by the eouuijel for the accuseil, may 
be suUly letl to tiie ((bjectii.ns themseUes, and to the argument 
staled HI support «if liiem : withuut st^pjiirig, at present, to ex- 
amine either the courtesy or llie eiHcaey of this most happy ex- 
pedient, tor evading the force of an argument which, if to be 
tairly met and answered by any huinar. skill or iri-enuify, seems, 
as ^et at leaiit, to have been, left in the victorious and iiidisputa 
bie possession of the fieUl. 

VV iien exception was taken to the new coined, or new com- 
p<»unded adjective, ''insubordinate," nothing less was intended 
than verbal criticisni. It was wUli no idea of denying absolutely 
the propriety, on suitable occasions, aiid witii the necessary skiU 
and taste, of introducing winds in new forms of composition; 
or vviti) any oilier itppress of a new coinage. The lawfulness of 
6uch coinage, and the rules by which it should be governed, 
have been t.jo long rstablis-lied by the celebrated canon«of a wit- 
ty poet and critic of anlirpiify, to be now questioned: though, it 
must he confessed, the Ury and solemn details of an indictment, 
Of crimiiiit! charge <lo not furnish tlie bappi<>sL occasion, or the 
tiiust legitimi'te subject Wv.- such adviniturou* essnvs, IS'either 
tlie propriety, in general, ol' the arhi(i:ir\ composition of a noun 
viilh a priviitt\e paiticle, when the writer desired to express 
some (j'laiity of contrariety (o (he primitive noun; nor even the 
cnUidn jtnutuia of "insubordinate," vvhi?n opposed to the same 
philosojiliical or ileterminate iiieas expressed by the primitive 
adj^■ctive, was culled in (j'-estiun. Far different fron» such di- 
vertisements of lettered liesure or strenuous idleness, were the 
gUt of the objection, and the scope r.i' tiie criticism upon the 
terms of this cliarge. That the adjective, .sifycjv'iwn'f, had never 
ucqiiiied, by well established use, nor even by any use, either 
tecliical or popular, any meaning di'Terent fro^n that aflixexl to it, 
tn philosophical and literary hifiguage : that such meaning was 
uitetly unappropiiatc and iiicompeteni to denote the presence of 
any military viitue, or other Uioral ipjality in an individual, is 
clear and indisputable upon autiiority ; and is distinctly admit- 
.1edi)V the judge advocate; when he admits, as he does, without 
.qualificalioM, 'he definition cited by the counsel for the accused, 
as comprising all the received significations of the word. Then 
IS not the cimclusion irresistible, that the new and arbitrary com- 
position of the word with tlie privative particle (unknown, as it 
rerta4.uly is, to any vocabulary of the lauguage, and without any 



232 

fixed or known meaning, either technical or popular, bej'ond t^ie 
tnerc contraviely of its primitive^ was equally unappropriate and 
intompetent, to express the presence of any military vice or 
crime\n an individual; to say nothing of the still more incom- 
prehensible idea, which it conveys, of the character »»f a letter ? 
'Tis not intended to go over the ground already so mucli trodden : 
but let the exceptions, taken by the counsel for the accused, to 
the 2(1 charge and its first specification, be carelully re-examin- 
ed ; let the import and meaning of the phraseology therein used 
to define the oftence, be bri)ugl>t to the test of the uncontrovert-, 
ed and incontrovertible definitions, by which such phraseology 
has been analysed ; and see what can be made of "insubordinate 
conduct;" what of the naked and unconnected charge of writing 
sundry " letters of an insubordinate and disrespectful character:'^ 
without explanation, or reference to the means of having ex- 
plained what is meant by such a character; in what it consisted ; 
or ('whatever be the character intended to be given of the letter.) 
how tliat character reflected upon the character or conduct of the 
writer; — in what degree ; howor wlmm it offended ; or what du- 
ty it transgressed. — Give the utmost allowable latitutle to the 
import and meaning of the terms ; adopt the most relaxed and 
indulgent rule, for the framing of military accusations; — task, 
to the uttermost, the learning and industry devoted to the main- 
tenance and vindication of the charge; nay, "resort to the sub- 
tleties, quirks and quibbles of the special pleader, to the subtle 
casuistry of the professional logician, to the pedantic refinements 
of the verbal critic;"* task all the resources and ring all the 
changes of "verbal criticism,"* and "philological criticism:"' 
and, after all, he who shall deduce, from these terms, a precise or 
intelligible charge of any definite offence i;nown to the military 
law, or to any other law, human or divine ; — ille mihi erit magnu!i 
.Ipollo. 

A coryecture was hazarded that "insubordinate conduct" 
might possibly have been intended as a paraphrase of another com- 
posi-tion of a noun with a privative particle, forming insubordi- 
nation: from which no appropriate or definite meaning, applica- 
ble to any matter of military accusation, could be inferred, but 
disobedience of orders: which reiluced the second charge 
to the identical terms of the Jirst ; and stripped it of all 
relation to and support from the specijications annexed to it.(b) 
The subst^xntwe, subordination, was admitted to have legitimate- 
ly acquired, in military language, a peculiar signification, (name- 
ly, an obedience or submission to ordersj unknown to the lan- 
guage of general science or literature ; and very remotely, if at 
all, tleducible from its radical or primitive sense: while, on the 
other hand, the adjective, subordinate, was invariably used, in 
military language, as in all admissible usage, with the strictest con- 
formity to its radical sense, and with no analogy to the peculiar 
sense of the substantive, as a military term : and "therefore the ad- 

* Elesyant extracts from the jiidg'e advocate's argument in answer tc 
the exceptions taken to the 2d charge, on the part of the accused. 
rhj Antp,p, ], 90. 



2^3 

jective, whether simple or compounded, being so confined to its rad- 
ical sense, cannot be made to denote the quality or condition signified 
by this peculiar and extended sense of the substantive either simple 
m- compounded. The hypothesis just stated could not, therefore, 
have beeti intended as a concession, either that " insubordinate con- 
duct" could be legitimately expounded into a definite and Valid 
ciiaioe.by its relation to insubordination ; or that it was admissible! 
ti} frame so solemn an instrument as an indictment or charge be- 
fore a court martial in terms which requiried such bold and con- 
jectural emendations of the text, in order to come alt a meaning : 
it was stated as the most favorable interpretation, to give sense 
and meaning to the charge: but, as such, reducing it to a mere 
repetition of the first charge ; without one specification to sup- 
p;)rt it. The judge advocate, though he rejects the particular in- 
terpretation which thus reduces the two charges to a state of 
absolute identity, has nevertheless seized upon '• insiibordirka- 
ifio/i," as convertible with "insubordinate conduct." How, or 
upon what authority they are made so convertible, is not explain- 
ed : and, certainly, if he adheres to his own interpretation of the 
former, the convertible quality, thus assumed, of the two phrases, 
is not consistent with his explicit admission of the respective defi- 
nitions, of the same given by the counsel; which established an abso- 
lute divei-.sity. Numerous authorities are cited to prove thatsuftor- 
dination denotes the presence of certaiji valuable and necessary 
qualities in military bodies both collectively and individually: 
and some respectable writers are quoted for insubordination as 
denoting; the absence of such qualities in collective bodies ; though 
not one is found to have used it, as denoting any military crime, 
or specific misconduct in an individual. The end and aim of all 
this learned and laborious research, are to prove thdt subordina- 
(io»i has other significations, in relation to military matters, b,e- 
sides obedience or submission to orders: and, by parity of rea- 
son, that insubordination may signify something besides dis.obe- 
dience of orders. Doubtless, the primitive noun is used in a vai«-' 
riety of senses, in reference to military matters : — when applied 
to collective bodies, it denotes the regular seVies and gradations 
of ranks, and the principles of cohesion, organization and disci- 
pline whicit preserve their order and efficiency : in that sense, 
it is opposed to anarchy or disorganization : so, when applied to 
an individual, it may denote the possession of all the military 
principles and virtues which adorn his professional character: 
but, certainly, the simple denial of the general qualities so pre- 
dicated of military bodies, collectively or individually, by the 
word taken in any of these senses, constitutes no spec.hc or de- 
finite charge of any military crime. Such a crime must consist 
of some overt act. of commission or omission, which the laiv has 
seen fit to lav hold of and to punish, as bad in itself, or of evil 
tendency and example. 'Tis not sufficient to disparage, in vague 
and -eneral tern.s. the character or qiialities, either moral or pro- 



234 

oitlcrs should, bj no moans, have been understood as the only 
sense of the word, in niilitary language: but as the unl^ one 
which could possibly serve to predicate of an individual any 
quality or conduct at all to the purpose of a criminal chari;e. 
Jsow, after the judj;,e advocate has rejected this application ot tlie 
€eru), and after all the long and devijus huntings after a mean- 
ing, what more precise or definite, or more to the purpose than 
this has he found ? Which of them reduces " insubordinate con- 
duct" to the definition of any certain or known oftence ; or even 
approximates a meaning for tlie " insubordinate character ol let 
ters?''' Let all his own definitions be examined, and see what 
definite or intelligible idea of military crime the simple negation 
of ihe qualities, described by them, would presetit : for such is. 
the utmost effect of prefixing the privative particle to the noun. 
In truth, the argument, in support of the charge, creditable as it 
is, in other respects, to t!>e learning and ingentiity of its author, 
is just as void of precision and of specific intent, in respect ot 
the nature and degree of the offence denoted by the term "in- 
subordination," as the cliarge itself, in respect of the supposed 
paraphrase. 

The alleged resemblance between the criticisms of the coun- 
sel upon the phraseology of the charge, and the impracticable 
speculation censured by Professor Stewart, of crampiiig and 
impoverishing written and oral language, by repudiating every 
signification not deducibie from the radical or primitive sense ot 
words ; as if the different significations must all he species of the 
same iivnifS, is visible only to the " microscopic eye" which has 
discovered it. Those criticisms plainly and in tornvs admit an 
unlimited departure from the radical sense, provided it be sanc- 
tioned by known and approved usage. The sovereign power of 
use'or custom to determine the meaning and various significa- 
tions of words was not only admitted, but insisted on : and was 
particularly illustrated in "(he defioiti«)ns of the words, subordi- 
nation and subordinate. It was, in<leed, objected t^iatan indict- 
ment, or any other o-iminal charge was. above all other writings, 
bouird by the accustomed, known, and established sigtiification 
of words, both technical and popular: and that it was utterly inad- 
missible to introduce into such instruments either new coined 
woids, or old words in novel and unaccustomed senses; the 
meaning and application whereof v/ere to be sought from va"ue 
analogies, or rtmote etwnologies. The reasonableness, the i'us- 
ti e, and the plain common sense of all this are perfectly dear 
"When these criticisms, therefore, are dfscribed as "a similar 
^8ort of ingemuty" to the scholastic refinement commented on 
by^'roles^or btewart, it is difficult to determine whether .he cri 
trcsms or the author ciicd against then., have been read with the 
least attention. f«j ^ 

2dly. The second ground of objection to the charje and sneci- 
ficat.ou8,as not describing ,n terms (even where the terms them 
selves were .ntelligible) any offence within the purview o I" th^ 

raj_ Vid. the passage cited by the judge advocate, fn>m Stewart's essavs, 



235 

iiaval articles of war, appears to be perfectly conclusive, if that 
part of the judge advocate's argument wlucii asserts an unlimi- 
ted discretion and a legislative jurisdiction in courts martial, 
over the vvhole subject of military crimes and punishments, has 
been successfully answered. The sufiiciency of the charge, in 
terms, is not professed t(» be supported on any otherground; noir 
is it pretended that any one of the naval articles of war applies 
to it; or designates any of the specitied facts or circumstances, 
as an oftence under such articles. The contrary appears to have 
been implicitly admitte<l : at any rate, it is perfectly plain and 
clear from the comparative analysis which has bee«i made of 
those articles, in reference to the terms of the charge and speci- 
lications. 'J hen, setting aside this all pervading and all control- 
ling legislative faculty ascribed to the court, full sway is given to 
the rule which has been cited from so many concurring authori- 
ties ,- and which bears that " in the accusation or charge, the ol- 
fence must be set out with certainty and precision, so as to bring it 
clearly and unequivocally within the terms of the law or articles 
of warby which it is made punishable ; that there must appear a 
certainty of an offence ci)minitted ; and, in some instances, that 
it must be charged in the very words of the article or statute 
supposed to be violated : an indictment or criminal information 
in tiiecourts of con^mon law, or, as preferred by some, a libel iii 
the courts of the civil law, being referred to as tbe lowest ad- 
missible standard of the certainty, precision, and particularity 
required in a military accusation or charge '.""(a) — by no means 
understanding from this tiiat the mere solemnities and technical 
forms of such pleadings are requisite in a military accusation j 
but only those substantial parts that go to inform the party ac- 
cused, circumstantially and certainly, of the specific quality and 
degree of the oftence ciiarged against him. 

Now, bringing the terms of the charge and specifications, aS 
compared with the naval articles of war, to a test far less rigid 
than what this rule proposes, the utter failure of the charge, un- 
der the test, appears obvious and palpable. 

The heads of the accusation may be summarily stated as fol- 
lows. 

General charge, conduct characterised as insubordinate and as 
^nibecomiiig an officer : exemplified, 1st. by the writing of insubor- 
dinate and disrespectful letters: '2dly. by the unauthorized pub- 
lication if the proceedings of a court of inquiry : 3dly. by an 
incorrect stiiten\eni of such proceedings: 4thly. by various re- 
marks, statements and insinuations, doubly aggravated as being 
not tvarranted by ihe facts, and highly disresijectfui to the Secre- 
tary of the Navy, and to the court of inquiry : and 5ihly. by the 
unauthorized publication of official communications. ft; 

Now, as to any breach of subordination, at which the charge 19 
sunpossd to squint, it may be remarked (^setting aside all criti- 
cism upon the meaning or significancy of - insubordinate con- 
duct" and " insubordinate letters"; that the only acts which the 

■fa J Ante, p. 184-5. 187.-8, 224. and the authorities there cited. 
Cf>J Ante, p 7, 8. 



law has thought tit to be laid hold ot, as constitutuig aiiy suctij 
breach, are enumerated under specific and distinct heads, in thej 
naval articles ot war: viz,, neglect of the orders ot a comman-| 
dingotficer in battle, &c.; disobedience ot the lawtul ordeisot aj 
superior otficer ; drawing or raising any weapon against him, &c.» 
mutinous assemblies ; seditious or mutinous words; contempt of^ 
a superior oflRcer, being in the execution of bis otYice, &ic.(a)^ 
Then if the design had been to charge any breach of subordina- 
tion, it should have been clearly and unequivocally brought under 
one or other of these general heads, or descriptions of the otience ; 
with distinct specilications of the facts audcircumstances, &c. As 
to " conduct unbecoming an otticer'* there is no such title or 
head of ottence in the whole naval code :('6j but every departure 
from such conduct, which the law has deemed a fit subject of ju- 
dicial animttdversion and punishment is, in like manner, enume- 
rated under specific and distinct heads, in one or other of the 
twenty-nine articles which constitute the criminal code of the na- 
vy : and which it is only necessary to read, in order to perceive 
the obvious and simple course ; which they indicate to every 
prosecutor of reducing his charge to one or other of these heads; 
and supporting it by proper specifications. The impertinences 
and frivolities wliich might be^involved in a charge couched in such 
loose and indefinite phraseology, as conduct unbecoming an offi- 
cer, has already been adverted io.(c) As to the disrespectful 
matters, alluded to in the specifications, the same remark ap 
" plies, as to the two membi-rs of the general charge : that there is 
no such title or head of offence in the whole naval code, as disre- 
spect. The difterence between the military and the naval arti 
Clesof war, in this particular, has already been remarked: dis- 
respectful words and behaviour towards a specified class of per- 
sonages (from which the Secretary of War is excluded^ being re- 
cognised in the former, as substantive offences cognizable by n 
court martial. In tlie naval articles no etjuivalent provision is 
found: butit is nevertheless to be now interpolated, as it seem?, 
by the ex post facto legislation of a court, itself the creature ot 
these very articles, and created for the express and only pur- 
pose of executing their intents: and what is more, with an in- 
definite extension of its terms beyond the prescribed limits of 
the offence as defined in the military articles :(f/j for heie the 
disrespect is stated as affecting the Secretary of the Navy and 
the court of inquiry : no nianner of disrespect to either of whom 
could be brought within the terms of the offence as defined in 
the military articles. By the naval articles no nurds, oral or 
written, are punished, except seditiou<> or imttinoiis won.h:(eJ a 
description of words essentially and specifically different from 
disrespectful words. 

To treat with contempthis superior officer, being in the execn- 
tion of his office, is also un ottonce under the same naval article : 
and it It were not as essentially diiferent, as it certainly is, from 

(6) Ante, 185-6. Vi ) ^ if 

ic) Ante, p. 190, ' -^ ^ 



237 

the disrespectful letters, statements or insiiiuatiuns now com- 
plained of, the difference between the superior ofticer, described 
in the article, and the Secretary of the Nav^ or the court of in- 
quiry would be conclusive. As to the other facts and circum- 
stances stated or alluded to in the specifications (if indeed it be 
not an abuse of terms so to denominate any thing contained in 
these meagre and marrowless skeletons of specifications,) it might 
be suflicient to say that there being no valid and appropriate 
charge to which they can be attached ; and specifications being 
nothing more than the mere detail of the facts and circumstan- 
ces u|)on which the charge depends, neither can stand without 
the other: thecharge failing, the specifications go with it: for an ac- 
quittal of the charge, followed by a conviction of the specifica- 
tion, would be altogether unprecedented and absurd. 'Tis there- 
fore immaterial whether the specifications contain any matter that 
might have been moulded into a valid charge, or not. The mat- 
ter (d' these specifications has, however, been brought, in the course 
of the discussion, to the same test as the charge ; and, in that 
view, have been fully consi<lered and treated : (a) which dispen- 
ses with any further notice of them, upon that point, but a very 
cursory and rapid review. This may be most concisely and ex- 
peditiously accomplished by putting the question successively 
to each : — what article of war or other law subjects an officer 
of the navy to punishment by a court-martial, for the naked, in- 
sulated fact, ('without any superadded circumstance ofcriminati- 
ty or aggravation, j of having written "various letters of an in- 
subordinate and disrespectful character;" or of having published 
" various statements, remarks and insinuations higii^ disres 
pectful to the Secretary of the Navy and to the court of inqui- 
ry ;" facts which, if they can ntake him amenable to any legal 
process, seem to indicate a civil action for libel, as the appropri- 
ate remedy : or of having reported and published the proceedings 
of a court of inquiry ; such proceedings having been publicly 
transacted; brought to a conclusion, and the court dissolved; 
or of having "given an incorrect statement of such proceed 
ings :" without any suggestion that it had been done of malice or 
design ; or that the inaccuracy of statement had been produced 
otherwise than by mistake, accident, or clerical misprision : or 
of having published " various statements, remarks and insinua- 
tions not warranted by t\\« facts ,;^^ without the suggestion of any 
collateral circumstance of moral aggravation, to approximate a 
charge of scandalous falsehood, &c. : or of "having made pub- 
lic orticial communications to the government." &c. williout 
the violation of any injunction of secrecy, express or implied, 
which might have brought him under a charge ol disobedience of 
orders ; without any one circumstance, either intrinsic or colla- 
teral, in the papers themselves or in the circun. stances of their 
publication, to infer actual or possible mischief or inconvenience 
to the service; far less to impress upon the act ihe stigma ol 
gross and scandalous immorality, &c. within the purview ot the 
3d naval article of war. 

''a J Ante, p. 191 



238 

From this it appears t!iat, if the argument in favor of the un- 
limited jurisdiction of lliis court, as a court of honor, had proved 
ever so unansvveral)le, it must have ended in a merely abstract 
conclusion ; without any practical con:rit'(juence in regard to this' 
charge and its specifications: since, in tlie failure of any legal 
guilt, the utter aL»->er»ce of any moral turpitude, deducible from 
the terms of the accusation, upon which a court of h'inor could- 
animadvert, is clear and deiuonstrative upon the face of the 
charge and specifications. 

The judge advocate, indeed, seems to have taken a very dit- 
ferent view of the matter: for he is so transpurted at the enor- 
mity of the offence indicated by tlie terms of this charge, that 
he compares it to the highest of crimes known to (lie laws of God 
and man; to the blackest of those denounced in the ilecalogue;! 
and Zks being punisliable by the tacit prohibition of eveiy'law' 
human and divine. It must be confessed, however, that his in- 
siance,s of treason and murder, as being crimes (mly taciily pro- 
hibiteil, though the ortences be described and the punishuieut af- 
fixed by law, are not the most intelligible of illustrations. 

2. We come now to t!ie last (|Liestion ; — whether the specifi- 
cations fso called; have set forth the particular farts and circum- 
stances, with all the precision and minuteness of detail required 
as well by the established law and practice of courts-martial, 
as by a positive enactment of the nava! code. 

The judge advocate contends that more minuteness of detail 
has beeri required, than is warranted by any writer upon military 
Jaw. This must be determined by (he rule, as )ai»i down by the 
authorities and confirmed by the naval articles of war, compar- 
ed with fne alleged defects of the specifications. The rule bears 
that " the special manner of the whole fact ntust be set forth 
with certainty; that alt the circumstances of fi»i«', place, and 
manner of the acts charged must be minutdif described :" and 
an indictment or criminal information in the courts of common 
law or, as preferred by Mr. Tytler, a libel .n the courts of the 
cit;i^ law, IS made a cntermn : and JMr. Tytler, ia a passage quo- 
ted by the judge advocate and presently to be noticed, makes the 
specification of a charge to cox\^Ki\w a pointed detail oi xUc par - 
ticnlnr facts'^ whicli the prosecutor may be required by the pri- 
soner to furnish ; a requisition which, he savs, " is founded in ma- 
terial ju&tice; and which no court-martial can tp"^nlhj refuse.^- Such 
IS the rtile lulty developed and clearly expounded by the concur- 
ring authority ot all the most approved writers on military law (a) 
Ihe palpable instances and infinite degrees, in \>hich (liese M.e- 
cificdtions fall short of the rule, have been so fully stated as to 
make any recapitulation of tlieoi supei lluous.ffe) " 

The inconvenience, arising from (he necessity imaginetl to be im- 
posed by a strict observance of this rule, of slufH'ng out the snecifica- 

..onswitb voluminous documentsjamotigothersa printed pamphlet 
of more than lOP pages, and a voluminous record of a court l\ 
Jnq.iuy, all to be set out verbatim et lileratim, h objected: 



^ a) Ante, p. 187-8, mvI the atUhorities there cited. 

:.n^ Ante, p. ]'11-4. 



^39 

as i-f so necessary and beneficial a rule of law simuid give way, 
in Older to save the prosecutor some labor in writing. 

But this objection is merely fanciful. What more simple and 
fasy than to have specified the passages of the letters, supposed 
to be " insubordinate and disrespectful ;" and to have shown 
wherein their imputed rliiiracter consisted : the passages of the 
published proceedings nl' the court of incjuiry, alleged to be in- 
correct; wliich, by no means made it necessary to set out the 
pamphlet, in eci-tinso, or any part of the original record, with 
which it was to be compared ; the particular ;;«ssft^'"f,s being iden- 
tified, and a\ erred to be incorrect, would have been ail sufficient; 
the record uoed only to have b'.'Cn produced in evidence at the 
trial, to sustain the averments of incorrectness. So of the pas- 
sages of the pamphlet, j^upposed to contain the "various state- 
ments, remarks and insinuatinns 7iot irairftyitfid hy \he facts and 
disrespectful," ike. and so of the official communications, &-c. 
supposed to have been published without permission : these are 
not described even by a reference to the dates, nor by any one 
circumstance, ititrinsic or extrinsic, by which they can be identi- 
fied. Th.ese passages need only to have been specified with the 
same particularity atid conciseness as in an indictment or decla- 
ration for a libel : aini surely that is no such miglity inconveni- 
ence as to set asi<]e a positive rule of law. 

]iut tlure weie not wanting expedients to evade the force of 
an exception unanswerable, as we think, in its terms. "But the 
gfanYalU'.i of tlie ciiarge, (\t was said on the authcnity of Mr. 
TytlerJ although it may not be absolutely iv/jrotflfcv/ by the 
niilirary law, oraniouatto a voidunce or annulling of the indict'^ 
vient, attords, in e\ery case, a competent and weighty objection, 
upon the part of the prisiMier, which he may urge, to the effect of 
having the cliarge rciuiered si)eci(il, by a poirrted detail, from tlie 
prosecutor, of the ijayticular facts on wluch it is founded : and 
this requisition by the prisoner, which is founded in material 
justice, no ( ourt-marliai can legally r(fiise.^\a) Tlie hypotheti- 
cal »nd qualified terms, which tlius indicate a process for botching 
the defects in the original fratne of the charge, are assumed as 
ahsnlute, in the arguuient of the judge advocate ; and as ruling 
tiiat such delect " is not a!)solutely re-prt)ba>ted by the military 
Taw ; and iloes not amount to a voi<lance or annulling of the in- 
dictriitnt :" that a uuire precise and special statement of tlie mat- 
ter of the charije is Uierely recommended as ut' favor ; not re- 
quired as of indispensable obligation : and it is concluded that 
lite proper time and mode to have taken advantage of the objec- 
timi, was before pleading to the charge ; and then that the judge 
advocate should have been called on for the " jiointed detail oi 
jiartlcidar facts, on which the charge was founded;" a " requi- 
sition (\t seem!') founded in j/iflfcrifl/jusficc, and which no court- 
inartial can /fi;7(//v retuse." Be it so: — but it has entirely es- 
caped observation "that this remedy applies to only half the ob- 
jection ; that it is limited, in terms', to the gwieralihj of \.\\^ charge 



MO 

and specifications; and has notliing to do with so mucli of the 
objection as turns upon the inaccurate, confused and unmean- 
ing terms and phraseology, in which tlie charge itself is couch- 
ed. An indictment or other forn^ of accusation may be ex- 
tremely objectionable for its generalitt/ ; while its meaning may 
be manifested by language quite gran)matical, clear and intelli- 
gible. 'Tis, also, somen hat perplexing to comprehend, why the 
court-martial cannot " legally refuse" the requisition for lliis 
♦' pointed detail of particular facts ;" if there be no legal ohliga 
tion on iheproseaitar, to " prevent the objection''^ and the con- 
sequent necessity fiir such a requisition, by avoiding the original 
fault that is to produce them, it might, further, be asked, upoh 
what authority this requisition is restiicted to the time iA' arraigi 
merit before p^m; especially a plea ailmitted under a prt>test, re- 
serving the iilentical exception ; and why the evident defects ot 
the change and specifications have not, when so repeatedly com- 
plained of, been amended ; as might have been done, with a tythe 
of the pains and labor bestowt^d upon thejustification of them? 
But the mode of evading the force of the objection, by propo- 
sing a iinccedaneum, was anticipated, and effectually obviated, in 
the preliminary argument by which the objections were sustain 
cd. It was shown that the rule did not rest upon the general 
law and practice of courts martial only; cogent and conclusive 
as were the authorities, by which such law and practice had been 
ascertained: but that it had been incorporated ajid consolidated 
with the mass of our naval articles of war; and so, had acquired 
all the force and authority of positive enactment. For this the 
38th article was referred to ; which expressly requires, that " the 
person accused be furnished with a true copy of the charges, with 
the specifications, at the time he is put under arrest :" and makes 
them afterwards unalterable but upon certain extraordinary con- 
tingencies, specially stated in the body of the article. («j Now, , 
as the full import and meaning of the term specifications, had 
been determined by the precedent law and practice of courts 
martial ; it must be held to have been adopted by congress, ac- 
cording to its technical import; and to have had precisely the 
same effect, as if congress had descended to more minute le- 
gislation ; and had, in terms, required all the •• pointeil detail of 
particular facts" which, it seenis, a court martial could not have 
legally refused to enforce, when properly requiied. Mr. Tytler, 
in the very passage which is relied upon, as conceding the prac- 
tice of amending the charge after the court has assembled for 
the trial of it, clearly excepts charges under a particular article 
of war, in which it was thought just, on account of the generaliti/ 
of its terms, expressly to require specifications : and he very hes- 
itatingly yields to the inference, that, because they are not ex- 
pressly required under th-e other articles, th« omission is not fa 
tal and incurable under any other; and " may not amount to a 
voidance or annulling of the indictment.^^ Indeed the practice 
at altering the charge, after the court has assembled, is directly 

CaJ Vid. Laws U. S. vol. 3. p. 358. a. 38. 



241 

cpntiary to the general rule stated by all the authorities before 
cited ; and the few precedents, that have formed exceptions to it, 
are stated as very questionable in principle. 

But take the proposition in the uttermost extent to which it 
has been thought the authority of Mr. T. could carry it. It was 
deemed expedient expressly to require specifications to charges 
under one particular article, which punishes " scandalous infa- 
mous conduct unbecoming the character of an officer and gen? 
tleman;" because of the generality of the terms in which the 
article and the charge under it are couched: therefore the duty 
t(» furnish such specifications is imperative, and the omission fa.- 
tal : but as to other charges, the duty, not being prescribed by 
positive enactment, may be so far modified or supplied, atthedis- 
cielionof the court, as to enable the prosecutor to supply the- de- 
fect at the trial : but it must, at all events, be supplied if requi- 
red. But the 38th article of our naval code just as imperatively 
requires specifications to all charges, without distinction, as tl^^ 
British article, to the particular charge therein designated : there- 
fore the duty is equally imperative, and the omission equally fa- 
tal to every and any charge, under our naval articles of war, aS 
to a charge under the British article particularly referred to. 
The reason of the thing applies with infinitely greater force ; as will 
be obvious, from a comparison of the vagueaess of the terms of 
the charge now in question, and of one framed under the British ar- 
ticle, for " scandalous infamous behavior unbecoming the character 
of an officer and a gentleman." In the latter there is a positive, dis- 
tinct, and intelligible charge of gross misconduct, highly deser- 
ving ('in a »f»ilitary sensej of reprehension and punishment: the 
only defect i^ the absence of specifications of the particular 
facts, on which the charge rests; which are requisite to put the 
accused on his guard and enable him to prepare for his trial. 

The answer offered to this argument is curious. 'Tis said that 
this statutory rule, requiring specifications, and forbidding sub- 
sequent alteration of the charges, was introduced for the benefit 
and advantage of the person accused ; who is always competent 
to renounce it: and if he desires more minute specifications, he 
must renounce the rule, and permit the amendment. So a rule 
introduced for the benefit of the person accused, and of impera- 
tive obligation upon the prosecutor, is violated by the prosecutor 
to the disadvantage and injury of the person accused : but he 
cannot except to such illegal 'violation of the rule, unless he 
agrees to purge his adversary's fault, by renouncing the very 
tight that has been invaded. If this be not a virtual repeal of 
tlie law, why, the chasm in the chain of cause and effect is utter- 
ly imperceptible to our common sense. 

The rationale of this rule, and its highly beneficial character, 
were illustrated by the citation of another rule, vouched by the 
same authorities, and designed for the same beneficial end : and 
which required that the person accused should be furnished with 
a li.st of the witnesses to be adduced against him ; together with 
a copv of the charges : to enable him not only to make the best 
prcpaVation to meet the/arts, to be adduced against him, but al- 
U 



242 

90 io invalidate the testimony of llie rt'jiwpssps, if practicable,* 
Tlie concurring authority of the fi»ur aut+iors, already cited, is 
unceremoniously set aside, upon tlie supposed authority of soote 
posthumous notes of the late judge advocate general of England ; 
introduced into the advertisement to the last editi()n-<»f Mr. Tyt- 
ler'sessay. Buta more careful examination of those notes will 
show that the rule is not denied as one oi' general, but of imiversal 
application : and that nothing more than its relaxation, in cer- 
tain excepted c'asefi, is insisted on.t 

But against all the force of general learning and authority, 
confirmed by statutory enactment, numerous examples of the ac- 
tual form of charges and specifications, tried before our courts- 
martial, have been industriously collected. And for what pur- 
pose ? Is it imagined that any possible number of bad prece- 
dents, silently creeping into practice; and n^ver having received 
th'e sanction of a judicial confirmation, can be competent to 
override a rule of law, so ptTsitive and so authentically vouched r 
The authors, who have laid down the rule and illustrated its util- 
ity and necessity, all advert to certain practical violations of it; 
^\'h^ch are not cited as precedents, but as examples of irregular 
practice to be avoided. 'Tis true, that tlie precedents, c(»llected 
by the judge advocate, seem, for the m(vst part, to be extremely 
defective in minuteness and precision of specification : but, by 
how many degrees do they excel the present charge in legal pre- 
cision and propriety of pluase. There is scarce one of them but 
cliarges, in direct terms, some heinous offence; as scrt/vrfa/oifs 
falsehood; forged letters ; malicious and false and scandalous libels, 
&c. &c. But whatever he the character of these precedents, 
they cannot be opposed to a well defined and positive rule of 
law; but may only serve to illustrate the necessity uf e"nforciiig 
it, and the wide spread and inveterate mischiefs likely to resuU 
from the violation of it. 

After all, the only expedient that can possibly reileem thi^ 
charge from the consequences of its inherent and manifold vici'?. 
is the one first thought of; a recourse to tlie dispensing powi-^ 
of the court ; the efficacy of which cannot be doubted, if that tri- 
bunal do indeed possess the legislative power ascribed to it : — 
which so far surpasses that of any regular legislature, as it goes 
the length of enacting ca* pvst facto laws. 



[Note. In the foregoing remarks is embodied what was said in 
the defence, in reply to the technical or strtclly legal points of 
tV judge advocate's argument. Tlie reply to sucli points has, 
for the reasons already stated, (V/j been abstracted from the de- 
fence, and made to take its pro[)er place in the series of the dis- 
cussion ; that is, imuVediately following tiie argumeiit to which 



♦ Ante, p. 18S. and tiic- authorities there cited. 

t Vid. ^dvt. to Jd Edit, of Air. Tytler's cssa\-, ?). xii. 

raj Post, p. 34* ' 



243 

it rf»|)lled. Certain statements, rather digressing from the matter 
in hand, have doubtless struck the attention in the course ofread- 
ing tiie judge advocate's argument, as calling for some notice. 
Tiiuse have been passed over in the foregoing reply, because the 
remarks by which they were originally repelled (and more se- 
riously perhaps than they deserved j find an appropriate place in 
the defence ; to which the reader is referred. ('a) One addition^tl 
remark, however, has been suggested to us. 

If, at the time this preliminary discussion upon the sufficiency 
of the second charge and its specifications occurred, the list of 
variances between the published statement of the proceedings of 
the court of inquiry and the original record, which was after- 
M'ards brought forward to support tiie 3d specific-atipn,(fe) had 
been disclosed, Com. Porter might nut only have received some 
useful lessons in the " refinetnerits of verbal criticism," but have 
learned to view with more indulgence, and possibly as intended 
compliments, what he seems (o have understood* as gratuitous 
and illiberal reflections upon the moral merits, apart from the le- 
gal »lV(.'Ct and conclusiveness of his exceptions. — Accordingly 
when he heard them denounced as going to establish a precedent 
whereby " the accused should be absolved from punisfHueut be- 
cause the person who drafted the charges has committed a verbal 
inaccuracy or technical erior, which though it may nullify tbe 
charge in point of form, leaves the character of the accused bur- 
tliened with all the odium wliich the accusaticm itself creates, 
augmented by the tacit admission of gui'lt which is involved bv 
resting his defence, not upon a denial of the fact, but a nicety of 
special pleading or a philological criticism :'*— when he heard 
tlie court warned against the consecjuences of encouraging the 
oflicers of the nary, "instead of clierishitiii; a lofty and chival- 
rous sense of honor," and a deal (d" other fine senfiments. to " re- 
sort to the qiiirliS and (jiiibbles of the special pleader, ihe subtle 
casuistry ol the prulcssionai logician, or the pctlantic refinements 
of the t"('/ fcfl/ critic :-* — all thi*, if he had been earlier instructed, 
by such high autliority as the aforesaid "list of variances," in 
the transcendent merit of u-Jing such weapons in the attaeJc, 
might have been received as highly tlatlering commendations of 
the defence, bestowed in the most liberal spit it of pcdemical cour- 
tesy, so highly becoiTiin^ to gentlemen and scholars. He would 
probably never have surmised that "pedantic refinements of ver- 
bal criticism," or " the quirki^ and quihhles of special pleaditiig" 
could have signified any reproach in the vocabulary from whicli 
had been elal)<>rated a criminal charge hinging upon the minutest 
of clerical and typotrraphical errurs ; and upon grammatical, and 
even mechanical slips in every degiee from violated syntax and 
bad spellitii;:, to inaccurate piinctuniion, misplaced emphasis ai\d 
transposition of document-s. If he had been said to '• cavil on 
the ninth part of a hair," or to argue the dilTere.nce befweenits 
" north and north west side," it should have been received as 

^«) Post, 29*— 33* 

(6) V\tl.'"IJst ■.)+' vaiiar.ces," kc. niite, p. 332— 141. 



2^ 

of his life, in arduous, and, as he hopeil, acceptable services ; who 
had looked for approbation, if not honor, as his reward, for an un- 
stinted exposure to labors, privations and dangers; so much the 
more disinterested, as, however beneficial t(» his country and to 
nunkind, it promised few of the personal gratifications, which 
may laudably be sought, in the renown of more striking and bril- 
liant achievements; who was conscious of having acted with the 
most implicit respect and exact fidelity, to what he understood to 
be the views and instructions of his s^uperiors; who, with wasted 
powers of life, but untirins; activity and zeal, had exerted, for tlie 
fulfilment of those instructions to (lie utmost scope of their let- 
ter and spirit, whatsoever of cflicient energy, a constitution, worn 
and broken in the public service, had left him; — that such an one 
should have been somewhat sore and impatient under rebuke, 
that came, like a portent and a wonder, upon his astonished sen- 
ses, was far more natural, than that complaints of misconstruction 
and iajustice should have been interpreted into disrespect ; and 
free, but decorous remonstrance, treated as little less than mu- 
tiny. 

In my justification against these charges, I must regret the ne- 
cessity of occupying a larger portion of the valuable time, of this 
court, than any intrinsic difficulties, in the questions themselves, 
might possibly have required. But the terms, in which the charg- 
es have been framed; — their often complained of vagueness and 
uncertainty, as to the nature and degree of the otfence intended 
to be charged ; — the mysteiy observed as to the application of the 
facts and circumstances, given in evidence, to tlie gist of the ac- 
cusation ; and the defect of itny advertisement of the points in- 
tended to be insisted on, in the prosecution, or that were sup- 
posed to require elucidation in the defence: all these circum- 
stances compel me to traverse a wide field, as well of conjectural 
as of obvious justification. 

Charge I. Before I proceed to discuss any matter of fact or 
law, put in issue by the first charge, it may be useful to attain as 
distinct an understanding, as practicable, of its terras ; and of the 
nature and degree of the guilt imputed by it. 

The general bead, under which the offence, intended to be' 
charged, is classed and characterized, consists of two members: 
first, "disobedience of orders;"' second, "conduct unbecoming 
an oflicer." The first, doubtless, ffills under a general descrip- 
tion of military offence, common to every organized body of niili- 
tary force in the world : but, in every military code, by whicli 
s^ich an offence may be punished, the character and functions of 
the officer from whom the orders are supposed to emanate, and 
the nature of such orders, are usually defined, with all reasonable 
precision. In the 5th and 14tli of our naval articles of war, this 
species of offence is defined, in terms nearly equivalent to the 
correspondingarticles in the naval and military codes of Britain ;(«) 
and in our own military articles of wa.r.(b) Our oth naval ar- 

(fl) M' Arthur, vol. 2, p. 275, art. H. p. 277, art. 22. p. 278, mutiny-.ict, sec 
1 . p. 279, militar}- articles, 3, 4, 5. 
(i) Article 9 



3* 

I tide of war is, in terms, restricted to the orders of a commanding 
l[ officer, wlicn preparing for, or joining in, or actually engaged iti 
battle, liut the 14th article, conceived in terms somewhat more 
*v comprehensive, enacts that " no oflicer or private shall disobey 
the lawful orders of his superior officer, or siriAe him, &c. while 
in the execution of the duties of his office." The punishment of 
the offence, in either ot its modes or degrees, is •' death or such 
other j)unishment as a court-martial shall inflict." Then, if by 
the " disobedience of orders," here charged, be intended any of- 
fence known to the naval articles of war, and punishable under 
them, it iinplits that I had received, from some sztjjerior o^ic*')', 
in actual couimand, either, while engaged, or al>out to be engaged 
in battle ; or otherwise, " in the execution of the duties of his of- 
fice," some order, which I had disobeyed : and so, had come in 
the danger of a capital offence: as every military offence is de- 
nominated, which is punishable with death j though it be left to 
the discretion of a court-martial, to inilict any less punishment. 

When this general charge comes to be deduced into particulars, 
in the form of a specification, no orders, either commanding or 
forbidding me to do any act whatever, are set forth, either in terms, 
or in substance: no commanding or superior officer, from whom 
they are supposed to have issued, ia either named or described. 
The specification «iniply sets out the naked and insulated fact, 
of a certain invasion, by force of arras, upon the territorial sove- 
reignty of Spain ; accompanied by •' diversads of hostility against 
the subjects and the property of that power;" and, instead of any 
averment that, in so doing, tlie orders of a commanding or supe- 
rior officer had been disobeyed, the conclusion of the specification 
branches out into a " contravention of the Constitution of the 
United States, and of the law of nations; and a violation of in- 
structions from the government of the United States." Now, 
whether any " contravention of the constitution or of the law of 
nations," not involved in a disobedience of military orders, be an 
offence cognizable, under this charge, by a court-martial: or 
whether general instruclions from the government be identical 
with the orders of a commanding or superior officer ; and a vio- 
lation of such instructions, equivalent to a disobedience of such 
orders ; are questions of grave import; and will doubtless, in their 
due order, receive the deliberate consideration of the court. At 
present, however, v/e are endeavouring to ascertain the essential 
character and terms of the offence, actually intended to be charg 
ed : its legal attributes and consequences maybe separately con- 
sidered. 

As to the second member of the general charge, "conduct un 
becoming an officer ;" — whether it be intended to describe a mere 
incident to every act of military disobedience; or to impute some 
gratuitous and superadded circumstance of aggravation, in the 
mode and degree of it; and to inflame the guilt of simple disobe- 
dience, by some wanton abuse in the manner and circumstances 
attending the commission of the act: as in the "divers acts oi 
hostility," said to have been committed "against the subjects and 
property of the King of Spain :" are question* left in the charac- 



teristic obscurity and uncertainty, whirh have, all along, veiled 
the " head and front of my oftending," from any distinct view of 
it, that might have enabled me to perceive or to divine its extent. 

I shall hold myself, however, completely dispensed from any 
obligation or necessity, to pursue further the labyrinths, into 
vhich this indefinite member of the charge might lead us : since, 
I think, if any proposition can be made clear, by human evidence, 
it would be impossible, for the most vindictive accuser, to find any 
pretext, in the facts of this case, for pushingthe charge, beyond a 
simple departure from the letter or spirit of the positive rule of ac- 
tion, supposed to have been prescribed to me: v.lietherit be the 
Constitution of the United States, or the law ol nations, or my in- 
structions. If 1 have oftended at all, it is in the simple trans- 
gression of that rule: "the head and front of my oftending iiath 
that extent, no more." I shall therefore leave it to the court, 
without further remark, to decide, from the evidence, whether it 
were possible to have conducted a military operation, on neutral 
tenitory, with a more scrupulous regard to all the rights of person 
and property; which such an operation could, in the nature of 
things, have left inviolate. If the act were unlawful in itself, I 
must abide the consequence: but it lies not, I think, within the 
compass of human ingenuity or malice, to contend, that the act, 
as being either lawful in itself, was stripped of its legal sanctions, 
and had its quality of lawful changed to unlawful ; or as a sheer 
trespass, that it was inflamed beyond its intrinsic character and 
degree, by any wanton aggravations or abuses, in the manner or 
concomitant circumstances. The question then, is presented in 
the simple form : whether the act complained of were, under the 
circumstances and inducements that led to it, an infraction, either 
of the Constitution of the United States, or of the law of nations, 
or of my instructio7is from the government of the United States : 
and, in that order, I proceed to consider it. 

Whether a belligerent operation, in the course of an authorized 
war, be constitutional or not, is a question which, if it have any 
significancy, or be capable of any solution, may be considered as 
nearly identical v^ith the other question suggested by this charge ; 
namely, whether it be consonant to the law of nations : supposing 
the law, here intended, to consist of the conventional, or custom- 
ary rules, by which civilized nations have agreed to control and 
mitigate the ferocity and the calamities, incident to a state of war ; 
and which constitute what is called the law of war. All that the 
Constitution of the United States has to do with the matter is, that 
it has delegated, to the general government, the unqualified juris- 
diction of war and peace. The power to carry on war, offensive 
or defensive, involves, in its terms, every right immediately, or 
remotely incidental to that stale and condition of human society. 
In what these incidental rights consist, must be determined by the 
known or necessary conditions and consequences of war. What- 
ever of these the most comprehensive signification of the term 
may embrace, are necessarily constitutional : but the law of war, 
as it is called, is, in n^any respects, so vague, and so dependent 
upon sfcrbitrary views of necessity or expediency, to be judged of 



5* 

fcby hostile parties, and to be justified by an infinite and incalcu- 
lable variety of peculiar circumstances, that it scarce furnishes a 
definite or intelligible rule, by which it may be predicated of any 
military operation, that it is either constitutional or unconstitution- 
al. The only constitutional question, therefore, is, whether the 
war itself were authorized ? that is, whether commenced, or car- 
ried on by that authority, to which the constitution has exclusively 
delegated this high power. 

This brings us to the consideration of the second test, which, 
'it is suggested, should be applied to my conduct, on the occasion 
in question ; and that is the law of natums. 

That branch of public law which determines the correlative 
rights and duties either of the hostile belligtM-ents, as between 
themselves, or of neutrals and belligerents, as between them- 
selves, or of allies or co-belligerents, as between themselves, con- 
stitutes a voluminous code; which is, perhaps, the theme of as 
much undeterminate controversy, both as to its principles und 
its authority, as any that ever underto(tk to prescribe roles of 
human conduct: and it would scarce be prarlicabie to deduce, 
from it, any definite rule, applicable to the infinitely varied cir- 
cumstances of actual war; and by which a military oflicer might 
be condemned for a presumed violation of the law; any more 
than of the Constitution uf the United States. In this case, how- 
ever, 'tis not necessary to trouble the court with any reference to 
the more recondite and theoretical definitions of general rules: 
because, in so far as my conduct depends, for its justification, 
upon such rules, it may be referred to an authoritative and prac- 
tical exposition of them ; as applicable to the particular circum- 
stances, under which I acted. 

The rights and duties incidental to a state of war, as it affects 
every party directly or indirectly concerned, have been the sub- 
ject of such frequent and elaborate discussion, in our own inter- 
course with foreign nations, and have received such lucid defini- 
tion and such various illustration from our most eminent states- 
luen, that we maybe said to have compiled and digested, from the 
best authorities and the most enlightened views of the subject, 
a system of public law, upon these topics ; which, if it be not 
generally adopted by the family of civilized nations, as the moral 
and political influence of our example extends, may, at least, be 
received among ourselves, as superseding, to every practical pur- 
pose, a reference to the more general and less applicable doc- 
trines of elementary writers. Our discussions with the powers 
of Europe, while they were belligerent and we were neutral, have 
settled, for ourselves, the positive rights of neutrals: and our 
more recent discussions and collisions, with one of those poweis, 
while we were belligerent and she neutral, have equully well set- 
tled the positive duties of neutrals. The rule, to be deduced 
from the latter, is so much the more intelligible i;) its doctrine, and 
obvious and practical in its application, since it has grown out of 
collisions and discussions of the belligerent rijrhts of the United 
States, as correlative to the neutral duties of this very power, 
Spain; whose territorial sovereignty I am charged with having 



I 



6* 

viofated : and innre especially of liei- neutral duties, as deltr 
mined by the peculiar cirriiinstanceS;Or her colonial dependencies ; 
in one of which the scene of my supposed transgression is laid. 

The right of a beUi;;erent, in the prosecution of a lawful war, 
to involve, in all the practical consequences of war, such parties, 
as, not being enemies, assist the enemy by active or passive co- 
operation, has bpen so clearly expouniled in the doctrines of puli 
lie law, and illustrated in the history and practice of our own £<> 
I'ernmenf, as to leave but little to be said on that subject, at tin- 
day. Whatsoever ground of controversy may remain as to the 
extreme Umiis, or necessary modifications of the rule, depends 
upon principles, entirely f()reiy;n to any question applicable to thf 
present case. In so far as the doctrine or practice is now in 
question, it is placed beyond doubt, or controversy, by the co:i- 
currinjs authoriiy of all the most appioved expounders of public 
lavv' ; and, above ail, of our wisest statesmen ; who have been cull 
ed upon, so frequently, to unfold its principles, and apply thsm, 
in practice, to tlie actual condition and relations of the country. 

The actual extent of the correlative rii^hts and duties of sucl; 
parties, i\m\ the circun»?ta!ices that tnay justify tlic treatment ( 
presunied friends, as actual enemies, are, in some degree, deter 
mined by (heir relative position, either as strictly neutral, or a 
allies embarked in a common cause : the positive duties of the lat- 
ter beinj:>-, oi' course, increased, both in nuuiber and obligation ; 
and many acts permitted to a neutral, beirtg unlawful in an ally. 

If a neiUrjI, thniui.;!) perfnly, p w'tiality, or weakness, (and it is 
perfectly immaterial which,) pern»it, ctr be compelled, by superior 
jbrce, to sutTer liis territory to be seized by one belligeient, or, in 
any manner, used, to the .innoyance of another, the latter has a 
perfect light to invade that teiritory ; and to use it, with all the 
means and facilities of war that it att"ords, to the same extent that 
bis adve!>ary is permitted to use, or has, by force, dsurped the 
same. The tenitmy, the inhabitants, and wliatsoever else there 
mav be there, which have bi^en thus converted into means of an- 
novaiice, are, for the time, impressed w-ith the character of enemy, 
anil may be treated accordingly. It is one of the most ordinary 
and undi-iputed, as well as the least harsh of these rights, to pur- 
sue an enemy into neutral territory, if he retreat there for refuge; 
or take his station there to be ready to sally forth and attack his 
a<Iversarv, as occasion and opportunity may serve. If this abuse 
of neutral tei-ritory pioceed nom the weakness of the sovereign, 
and his inabllitv to protect it from vi(dation, the rule is, that at 
the point, and in the degree that his autb.ority ceases to be exert- 
ed, with practical cilicacy, that of the purty injured by i-ts relaxa- 
tion, commences and extends. In the emphatic lanij;uage (d' Mr. 
Adaras ''The right of the United States can as little compound 
with iinpo'eiice. as with pcrjlilii -^ All this infers no hostility against 
fhc neutral ; b'jt j)roceeds up;in the great principle of self defence; 
which j'.jslifies a belligerent to disarm his adversary ; to turn up- 
on him his own v.eapons; and depiive him of the permitted, or 
usurped means of annoyance. There may be occasions, when the 
misconduct of a ne<itral sovereign might expose him to tlie resent- 



7* 

fment of the belli<i;erent sovereign, and make him an actual party 
^in ttie war: but I here speak merely of those incidental rights of 
' actual war, uhich airect him in his neutral character, and require 
' not the decision of the sovereif^n will to authorixe the enforcement 
of them; which are iiisepantbh' from bellij:;erent operations, and 
are vsummarily exerted, in the exip;ency of the moment, at the dis- 
cretion of the' commuiidtr to wliom the conduct of such operations 
is entrusteil. '*(.)f the necessity for which, [says Mr. Adams, 
speaking of the invasion and occupation, by military force, of neu- 
tral territory, including its fortified places and garrisons, whene- 
ver the effectual prosecution of hostilities against the enemy shall, 
in the o{)inion of the general, make it necessary,] he has the u\ost. 
» effectual means of forming a judgment; and the vindication of 
which is written in every page of the law of nations, as well as iu 
^ the first law of nature, self-defence. 'Ya/| 'l'l>e principle is not 
i* confincMl to neutral territory, but extends to all the ramifications 
of neutral sovereignty, andto all the modifications ofneutral pro- 
perty : for it is the same identical principle, modified by circuln'^ 
stances, that authorizes naval c<.mmanders, from the admiral of a 
fleet, to the lieutenant-commandant of a schooner, or a burge, or 
even the captain of a privateer, to seize, upon the high seas, neu- 
tral ships, carrying contraband, infringing a blocl^ade, or commit- 
ting other unneutral acts. In these cases, the ships sei/.ed are 
good prize ; but, like the territory, (of wiiich they are an emana- 
tiim of the sovereignty,) they are also liable to temporary seizure 
and detculion ; as when found laden with enemy property. This 
practical exertion of belligerent rights, upon the liigh seas, is, in 
principle, jmst as high-handed an interference with the exclusive 
domain of foreign sovereignty, in order to repel open or insidious 
hostility, in neutral guise, and by neutral means, as any analogous 
invasion or occupation of the actual territory of. the same sove- 
rei"-n. The flag of a nation is just as inviolable an emblem of so- 
il, vereignty, as territory; and the ship that bears it, is, constriidive- 
ly, a part of the territory, and just as much entitled to protection. 
" There will need (to borrow again the language of Mr. Adams, 
the condensation and force of which, added to its authority, may- 
dispense with other illustration,) no citations from printed treati- 
ses on international law, to prove the correctness of this princi- 
■ pie. It is engraven, in adamant, on the common sense of man- 
kind; no writer ever pretendeil to contradict it; none, of any re- 
putation, or authority, ever omitted to insert it." 

[ cannot forbear, however, adding to the dom'estic documents 
of (!urpu!)lic transactions, by which bi)th our belligerent, and our 
neutral lights, are so auiply unfolded, and accurately delined, the 
auth(»rily (d" the venerable and illustrious Grotius ; who may be 
stiled the lather of the modern law of nations. In laying down 
the rule, by which neutrals may expose themselves to the treat- 
ment of enemies, he also recommends certain modifications of the 

('ii ) Vide American reply by Mr. Adams, to the Spanisli note by Mr. Ph- 
zAino, Oil the subject of General Jackson's invasion, and occupation of llie FIo- 
l■ida^5: beini^- the letter, of November 2H, 1818, from Mj". Aplitms to our Miji^E» 
'• terat.Ma.drifl. 15 Njks' Hcg-istev, p, ^"2. 



8* 

strict belligerent right ; not as necessary limitations or exceptions, l| 
which a neutral may insist on. but as being merely recommended - 
by a spirit of imxleration and humanity; and which a belligerent 
may disregard, according to his own discretion, or his estimate of 
necessity or prudence, under existing circumstances, without in- 
curring the odium of having violated the established rules of civil- 
ized warfare ; and it mav be satifactory to the court to see, by how 
many degrees, my operations, at Foxardo, fell short, not only of what 
strict right authorized, but of what the most beneficent construc- 
tion of the right would have recmiinended, as within the bounds 
of moderation and humanity. 'Tis also worthy of remark, that 
this autlior, in the same pass;ige here cited, illustrates belligerent, 
as correlative to neutral rights, by the known and conceded right 
to attack a ship manned by pirates, or a house occupied by rob- 
bers; although, in that ship, or in that house, there may be many 
innocent persons, whose lives are endangered by the attack. ('fr^ 

Such are the correlative rights and duties, as between belliger- 
ents and parties merely neutral. But their reciprocal rights and 
duties are infinitely extended, when the parties assume the nearer 
and more intimate relation of allies, embarked in a common 
cause. An act, perfectly lawful in a mere neutral, may be abso- 
lutely unlawful in anally, and subject him to be treated as an ene- 
my by the forces of the other ally. For instance, nothing is more 
lawful than for a neutral to trade with either or both of the belli- 
gerents; yet it is unlawful in the subjects or citizens of an ally, J 
and exposes their ships and other property to seizure, as prize, % 
precisely as enemy property; and their persons to captivity and 
punishment.('cj 

A nation is not even bound to wait till the injury is actually 
felt, from the abuse of neutral or foreign territory; nor, even till 
an enemy appears, who may take advantage of its means, and con- 
vert it to purposes of hostility: but, in case of imminently ap- 
proaching, and foreseen peril, it seems to be lawful to take mili- 
tary occupation of such territory, in anticipation of the injuries; 
that may accrue from expected and future hostility. This is i 
strongly exemplified by the conduct of our government, anc"' 
the principles on wiiich it was publicly and officially justified, iii 
the occupation of Amelia Island and Galvezton: the one in the' 
undisputed possession of Spain, and within the uncontested, and 
incontestible limits of her then province of East Florida ; the other 
in the actual possessiion of Spain, and claimed as within the limits 
of her province of Texas ; but, within what we claimed, and Spain 
contested, as the limits of Louisiana.* The military establish- 
ments, at these places, in the hands of certain adventurers, acting 
under the awthoiity, real or assumed, ot some of the revolutionized 
provinces of South America, were suppressed by military force; 
and the places held, by military occupation, till Amelia Island 

(^bj Gvot. de Jur. bcl. fcpnc. B. 3, ch. 1. sec. 1, 2, 3, 4, & 5, (3 Camp. Gro 
p. UJ— 108.) 

fcj Vitle Chit. L. N. p. 11. Nuiudc, 4 Kob. 251. 

* Not::. Now admitted as on the Spanish ^ide, iji the settlement of limits by 
tbc treaty of the 22d February, 1819. 



9^r 

was restored, by an arrangement with the Spanish government. 
Ainonj; tlie reasons for this strong measure, given by the Presi- 
dent of the United States, in liis justificatory expositions of its 
policy and necessity, it was said, that an extensive systeni of 
buccaneering, throughout the Gulph of Mexico, was about to be 
organized at those establishments; menacing the United States, 
anil the commercial world, in general, with all the horrors of pi- 
racy. ('rtj Then the apprehension of piracy, as the possible and 
imminent consef|uence of these obnoxious establishments, justi- 
fied far stronger measures, and more decided acts of hostility up- 
on Spanish territory, than any committed by me, in the course of 
tiagrant war against actual pirates; who had established them- 
selves in another part of Spanish territory, where the sovereign 
authority of Spain was equally relaxed : where these pirates, with 
whom I was engaged in active hostilities, found shelter and asso- 
ciates, with persons under nominal allegiance to Spain, but who 
neither /e/f, nor acknowledged her authority, for any purpose, but 
as a cloak to their villanies. The documents, relative to this trans- 
action of our g(<vernment, furnish strong illustrations of the ex- 
tent, to which the great and sacred principle of self-defence au- 
ihooi/.es eitlier correci^tfg or ^jn'i;e?/fii"f measures, operating upon 
neutral territory. 

I now come to such of our public transactions, and the docu- 
ments that illustrate their history, and the principles on which they 
proceeded, as bear the nearest atlinity, and th« strongest analogy, 
both in principle and in circumstance, to the conjuncture in which I 
was called to exercise a sound discretion, in the practical application 
of these principles, to the actual state and condition of existing 
circumstances; when, as a naval commander, I was delegated to 
display the flag, and carry the arms of my country to remote re- 
gions, and there, upon my sole responsibility, without other coun- 
sel than my devotion to her glory and prosperity, to fulfil the im- 
perious duties of this high and most delicate of trusts, by uphold- 
ing the just power, and vindicating tlie sovereign rights, apper- 
taining io her belligerent character, according to the laws and 
customs of war, and the dictates of military prudence: rights, 
which I could neither abandon, relax, nor compromise, without 
diminution of her glory, and derogation from her dignity; nor with- 
out bringing contumely on her flag, and overwhelming myself 
with disgrace. 

The principles established by the documents now adverted to, 
regard Spain in her simple character of strict neutrality; without 
reference to her higher and more sacred obligations, as an ally. 

In the late war with Great Britain, in which the Indians of Flo- 
rida took part against us, general Jackson was expressly autho- 
rized, by President Madison, to take Pensacola, if it were found to 
have fostered Indian hostilities, by ministering to their wants, and 
affording them the means of annoyance. " If [proceeds the order, 

faj Vide President's several messages to Congress, viz : 2d December, 
1817, 13 Niles's Register, p. 237. January 3, 1818, id. p. 358-9, and 26th March, 
1818, 14 id. p. lOU, and the official correspondeuce on the same subject, id, 
?.. 169, kc. 



10* 

as indited by Secfetarj Armstrong,] tlie Spaniards admit into 
their towns, feed, arni^ and co-operate with the hostile Indians, 
you must sbike, upon the broad principles of self-preservation." 
The principle, thus concisely and furcibly enunciated, was de- 
veloped, and followed out, to all its consequences amd analogies, 
in the campaign of 1818, against certain Indian tribes of Florida, 
called Seminoles and lledsticks; vho had commenced hostilities, 
and carried on the most savage warfare against our scnjthern fron- 
tier : Spain being then just as much at peace, and in as positive a 
state of amity with us, as at any tiipe since. She held the undis- 
puted sovereignty of both the Floridas; where she maintained civil 
and military governors, numerous garrisons, and fortified places. 
But the extent of country, over which she exercised any practical 
sway, was very inconsiderable, in proportion to the extensive re- 
gions.occupied by numerous tribes ofsavagesand outlaws; who, ne- 
vertheless, inhabited a country under her nominal sovereignty : and 
the physical power of each was in the same proportion. When 
general Jackson, in the winter of 1818, took command of the ar- 
my, assembled to repel the incursions of the Indians, he found his 
predecessor, then second in command, general Gaines, in posses- 
sion of certain limited and defined instructions for entering Flori- 
da, in pursuit of the hostile Indinns, if it should be found neces- 
sary to repress their inroads. The savage foe was soon driven to 
his fastnesses, within the Spanish territory and jurisdiction ; and 
pushed by his victorious pursuers to the vicinity of St. \farks, a 
fortress regularly garrisoned by .Spanish troops, but well ascer- 
tained, by the general, to be a place of resort lor the savages, 
■where they obtained aid and comfort, and were abetted in their 
hostilities against our frontier. For these reasons it was entered 
by our troops, with violence, and held during the residue of the 
campaign. A British subject, domiciled there, under the protec- 
tion of Spanish laws, was executed, as a spy and incendiary, who 
had instigated the savages to hustility.fcj The general then car- 
ried his victorious arms to Pensacola, the capital of the province, 
which was entered by our troops without resistance ; the Spanish 
garrison having retreated to the neighbouring fort of Barrancas. 
This last was instantly invested, and, after a severe cannonade, 
in which some lives were lost, was on the point of being stormed, 
when the Spanish governor and his garrison entered into a regu- 
lar capitulation, surrendered the fort, and were transported to 
Cuba. Thus, in possession of the capital, and of all the strong 
places of the province, it was ti eated as a conquered country ; the 
civil and military departments were organized ; the laws of Spain 
continued in force; the preservation of the archives provided for; 
accompanied by all the minute arrangements usual after conquest. 
The stated provocations to these acts of apparent hostility, but satis- 
factorily explained as only strong and active measures of self-de- 
fence, are the inadequacy of the power of Spain to resist the en- 
croachments of the savages; the provisions and ammunition, with 

fej Vide General Jackson's official reports to the Secretary of War, 2Sth 
March, 8th April, and 5th May, 1818. (Niles's Register, Vol. 15, pages 307, 
308, oil.) 



11* 

which these last had been supplied; either extorted from the weak- 
ness, or granted from the bad faith of tlie Spanish authorities ; and, 
lastly, the interruption, by the Spanish governor, to the passage 
up the Escambia, of supplies from New Orleans for our troops. 

The Spanish governor, hearing of general Jackson's approach, 
had issued a proclamation, forbidding it, in the most indignant 
terms ; and threatening to employ force, if he did not immediate- 
ly evacuate the country. "This i\evf and unexpected enemy," 
says the general, " was made to feel tlie impotence of his threats." 
In the general orders and proclamation, setting forth these and 
other reasons for the measure, it is justified by the sacred and im- 
mutable laws of self-defence; as Spanish authority could not be 
maintained in Pensacola.f/j. Having thus overrun one Spanish 
province, expelled its garrisons, and taken all its strong places!; 
and thinking, with good reason, that Indian hostilities had been 
effectually checked, tlie general retired from the field. But hear 
ing, in the course of the summer, fresh accounts of renewed or 
threatened hostilities, and of continued abuses of Spanish terri- 
tory and means, to our prejudice, he despatched an order to gen- 
eral Gaines, directing him, if he should be satisfied of the fact of 
the Indians having been excited to hostility, by Spanish agents and 
oflicers about St. Augustine, and fed and furnished from that 
place, iiiimediately to occupy it, and make prisoners of the garri- 
son. This order was countermanded by the Secretary of war; not 
fiom any disapprobation of what had been done, or was about to 
be done, but because an amicable arrangement had, in the mean 
time, and unknown to general Jackson, been made between the 
two governments, fur the restoration, upon certain conditions, of 
tlie Spanish posts already taken ; witli wliich arrangement it would 
have been altogether inconsistent to have proceeded with the cap 
ture of St. Augustine. All this was fully and satisfactorily ex 
plained to gencial Jackson. ('^•j 

These proceedings" became the subject of the most animated 
and spirited controversy between the two governments. It was 
also doubted by many, and respectable citizens, both in public and 
in private life, whether the general had not transcended his au- 
thority, and exei cised the power of war and peace beyond all 
constitutional limits : and it became the subject of long and se 
rious debate in Congress. But, his conduct, in all its extent, was 
elaborately and victoiiously justified by our government, in all 
its relations and departments, foreign and domestic. The com.r . 
plaints of Spanish ministers were triumphantly answered, and 
finally silenced, by the official replies of the Secretary of State. 
The messages of the President, to both houses of Congress, ex- 

^'fJ \ kle g-cncral Jackson's g'eneral order, giving' a detailed account of 
the campaign, dated Barrancas, 29th May, 1818 ;liis proclamation of the same 
date; the cai)itatation of Harrancas, &c. &c. (Niles's Uegister for July, 1818, 
Vol. 14, p.3.>4 — (3. Also his letter to the Secretar)- of War, June 2, 1818, and 
other doctnnents, id. Aol. 15, p. 319--21,) 

("a; J \'ide t;-eneral Jackson's order to general Gaines, 7th August, 1818; 
his kitcr to tlie same, 10th August, 1818 ; and the Secretary of War's coim- 
tcrnuind to general Gaines, lat September, 1818. (Niles's Register, Vtl. 16, 
pages 8U— 1.) 



12* 

plained and justified the grounds of the general's procedure : and 
the vote of the House of Representatives adopted and confirmed 
the justification offered by tiie executive, (h) Against all vi'hirh, 
there remained nothing to be set off but an adverse report of a 
committee of the Senate; which has been suffered, ever since, 
to repose in utter rreglect; notwithstanding the General, at the 
next session, presented a memorial to the Senate, remonstrating^ 
in free and decided terms, both against the course of investiga- 
tion pursued by the committee, as unfair; and against their con- 
clusions as unsound in doctrine, and partial and uncandid in the 
views taken of the subject. 

Now let the principh^s, so clearly deduced from these most au- 
thoritative precedents, be applied to my situation and conduct, a's 
commander of the squadron in the West-Indies, engaged in ac- 
tual war against the pirates. 

From a variety of causes, too obvious to be mentioned, the 
Spanish Islands in the West-Indies were, for the most part, more 
destitute of any practical, steady and efficient governments and 
police, than the inhabited parts of the Floridas. The pirates, 
M'ho sought shelter there, were not, like the miserable savages of 
Florida, insulated and cut off from access to otlier quarters for 
belief; so as to be dependent on Sjjanish towns and garrisons, foi- 
occasional supplies of provisions, arms and ammunition. On tlie 
contrary, their enterprizing and successful piracies, and the ac 
cumulated plunder of hind and sea, gave them influence and fa 
vor, not only in the more barren or thinly inhabited districts : but 
in some of the more considerable towns and settlements: while 
their numbeis, their resources and their ferocity, overawed and in- 
timidated those, who were not seduced by participation in the 
jpoils of piratical enterprize. When the hot pursuit of our crui/,- 
rs had driven them from the sea, and destroyed all their vessels, 
capable of keeping the sea, they retreated into various parts of Cu- 
ba and Porto Rico; in some places, banded themselves a2;ainst 
the local authorities, and effectually defied every effort to reduce 
them ; in other places, they assumed various disguises, as fisher- 
men, droguers, pedlars, &c. 6cc. As fishermen, they built hut> 
and villages, upon the coasts of these two islands ; and kept up a 
constant intercourse with l!ie inhabitants ; from whom it was ex- 
tremely difficult to distinguish them. The innumeriible bays, in- 
lets, shoals and harbours, about these islands, i-nabled them to 
conceal the boats, in v\hich they nightly sallied forth fvonx their 
holds, and committed innumerable piracies; as well upon the 
high seas, as in the towns and settlements, on the neighboring 
coasts. They then retreated, with their plunder, to their secret 
haunts; reassumed their disguises; and eluded detection and 
pursuit. 

(h) Vide Preskl. Mes. to Cong. 2r)th March, 1S18, (Niles' Registf.r for 
April 1818, vol. 14, p. 100.) Presid. Mes. Nov. 17, 1818. (id. vol. 15, p. 21.3.) 
Note from the .Spanish Secretary of State to the Arneiicun minister at iMad- 
rid,29tli Aug. 1818, and the reply of Mr. Adams, 28th Nov. 1818. (Nilts' 
Register, vol 15, page 367 & stq.) 
General Jackson's memorial to the Senate, (id. vol. 18, p 329.1 



13* 

They were occasionally, however, detected ; and tlieir huts with 
all thei'r boats, fishing tackle, &c. burnt and destroyed. Several 
instances of these descents, upon the coasts of Cuba and Porto 
Rico, by the officers of my squadron, are found in the official cor- 
respondence and reports now before the court : especially in my 
report to the Secretary of the Navy ; and in the reports of captain 
Cassiii, and of lieutenant commandant Kearney to me, in the 
spring and summer of 1823. (i) 

Tins state and condition ot the Spanish Islands was not only 
perfectly notorious; but has been officially ascertained and pro- 
mulgated, and is now matter of authentic history : for, in the Pre- 
i-ident's messages to Congress, on the 2d December, 1823, and 
1824, and the reports of the Secretary of the Navy, on the 1st of 
December, in the same years, accompanying these messages, all 
these facts are fully detailed ; the good dispositions of tlie colonial 
governors, at least of the governor of Cuba, are acknowiedged ; 
and the toleration of the piratical establishments, within their ju- 
risdictions, explained by the weakness of their iiirans, and the re- 
laxed state of their authority. So strong were tliesc representa- 
tions, that at the last session a bill was introduced and !^e!•^ously 
■tlebated, authorizing a blockade of the Spanish ports in Cuba and 
Porto Rico; — the latter having been designated, in the official 
communications from the President, as most notorious fur numer- 
ous and pernicious haunts of pirates. 

As to Foxardo, you have it clearly proved, how notorious were 
that town and district, and an extensive tract of country around, 
as the most pernicious of these haunts for pirates: including two 
other noted places, on the same coast, from 20 to 25 miles from 
Foxardo, called Nauguaba and Boca del inferno, equally notori 
ous for the resort of pirates, and as receptacles for their pli.indci. 
It was to the latter of these places, known by so characteristic 
an appellation, that the crew of the piratical vessel, driven oji 
shore by lieutenant Sloat, attempted to retreat; as reported in 
his letter to the Secretary of the Navy of tlie I'Jih March last. 
I did not, however, act upon tlie sole authority of report or no- 
toriety ; mure than sufficient, as they are, when sufficiently credi- 
ble, to justify military movements. It was not till an American 
merchant, resident at St. Thonias, had been robbed of piojierty, 
to a considerable amount, in one of these marauding expeditions, 
traced, tipon credible information, to Foxardo; nor till after an 
officer of my squadron, who had landed, in the most peaceable 
and inoflensive manner, to inquire after the pirates anM the plun- 
der, had been treacherously seized, and disgiacefuily tieated, at 
Foxardo; that I determined to land and make an impression upon 
that place. I presume no military or naval man is to be blame<l, 
for acting upon credible and circumstantial information ; he is 
not to be expected to wait for either legal or moral cei tainty of 
proof. The necessity and propriety of the measure, and the cor- 
rectness of the information, upon which I proceeded, are a.i)[)ly 
confirmed. 'Tis in proof that ihe spontaneous opinion u\ the mer- 

(?) Vide documents accompanying' the President's message to CongTess; 
?d Dec. 1823. p. 156, 167, 174. 



chants of St. Thoiyas, and of the whole squadron, without any 
particular coininunicaliori fioin me, was clear and decided, not 
oiilj for the nece;<sity and propriety of the measure, but tliat it 
must and would be executed. My intentions were, as clearly, in-- 
fcired from what circumstances decided that they ought to be, as 
it I had fully declared tliem. I'he uhi)le ro-irse and event of the 
action entirely conlirmed eveiy anticipation. I no sooner ap- 
proached the harbour, under the most unequivocal demonstra- 
tions oi the real chaiacter of my s(|Uiidruii, tliaii 1 found a party, 
no wise distinguishable, in arms, ecjuipment or appearance, from 
the pirates usually found on shore ; and who, in the instances be- 
fore mentioned, had attacked captain Ca^sin, ant! lieutenants 
Kearney and Newton; by whom their villages and huts had been 
burnt and destroyed. This party stood ready, with two guns, on 
a point of rock; and, the instant I had anchored, witlniut one 
act of hostility or menace, on m)- part, and without any previous 
parley, on theirs, commenced hostilities by training the guns on 
my nearest vessel ; and then on the boat which was approach- 
ing the shore: and notiiing, I presume, but the perplexity, in 
Avhichthey were kept, between the two objects, prevented them 
from firing on us. Tlu^y dispersed, before our party reached their 
battery; the guns of which we spiked. "NVe found the village en- 
tirely deserted ; no human bi'ing to be found, with whom we could 
hold parl*>y. VVIien it is recollected that I had established a good 
understanding with the governors of Cuba and Porto Rico; was 
acting in concert v.ith theuj ; h,ad remitted, to their jurisdiction, 
pirates whom we had taken, and who had been punished by the 
local governments;— -when all this was known and notorious; 
how could [, in reason, account for these dem<mstrations of hos- 
tility, immediately on my approach to the harbour of Foxardo ; — 
and for the flight of the party at the battery, and the desertion of 
the village? Vv'as I not authorized, nay bound, to conclude from 
these circumstances, taken in connexion with the infamous char- 
acter of the place, that it was a piratical establishment? Did it 
not require, at any rate, further investigation ; and that 1 should 
proceed to exauiine into the state of things at the small town of 
Foxardo, only a niile or two from the harbour? — Nothing. I think, 
can exceed the caution and moderation with which t proceeded. 
A flag was sent, in advance, v;ith a letter, addresst'd to a sort of 
inferior magistrate, called an Alcalile ; the only ofticer, except a 
very low and disreputable person called the captain of the I'ort, 
,vho was to be found there. As we followed ihe liag into the in- 
terior, the most perfect order prevailed among our troops; an<l 
no whisper of complaint has been heard, (d' the sligjilest injury 
fo the persons or proptM-ty of the inhabitants. The further we 
advanced, new circumstances of suspicion arose, to confirm alt 
we had heard, and all we had inferred from what we saw at our 
first landing-. There was the same irregular assemblage of arnietl 
men ; equally equivocal in character and appearance, as those \^ ho 
had been dispersed at the battery ; without any of the ordinary 
badges to distinguish them, as belonging to the government of the 
•■•ounlry; and, by tlieir causeless Ijo'i^iility, justifying the wursi 



15* 

.Ifuspicions of their character and intentions. When i met the 
Alcalde, accotiipauied by some of the better sort tVom the town, 
he excused himself, for his coiuluct to lieutenants Piatt and Rit- 
chie, as having been under compulsion ii^)m others: and this was 
repeated to lieutenant I'latt, by the interpreter and another per- 
son in the Alcalde's train. The nature of the compulsion, and 
the persons from whoni it proceeded, were not explained ; and, as 
lieutt-nant Piatt declares, there appeared some strange mystery 
about flie transaction. The mystery may, perhaps, be very satis- 
factorily cleared up,- when it is recollected that lieutenants Platfc 
and Ritchie, at their former visit, had, at first, been received by 
the Alcalde \vith civility : but that the rabble were extremely ex- 
asperated against them. From all which, connected with the in- 
famy of the place, and the very suspicious conduct and appear- 
ance of the people, whom we encountered, it might, reasonably 
enough, have been concluded, that the pirates were strong both 
in nunibers anfl influence ; and had (iverawed and held, in sub- 
jection, the miserable functionary, who bore the badge, without 
tiie substance of a regularly constituted authority: whomit would 
have been absurd, and derogatory to any government to have 
treated, as qualified to challenge the respect due to a sovereign, 
in the person of his representative. 

Then, was not here presented a clear case of th« "jurisdiction 
of Spain ceasing at the point where her weakness failed to maiu- 
taia her authority ?" \Vhat possible distinction, between the hos- 
tile appropriation of Spanish territory and Spanish means to ouf 
injury, by the pirates, in this instance, and by the Seminoles and 
other savages in Florida.^ In truth, every circumstance and every 
reason that were admitted as the most triumphant justification ef 
the course pursued in the campaign in Florida, are here more 
clear and pronounced: and yet, because I merely displayed my 
force on Spanish territory, by way of intimidation ; exacted an 
apology for the past, and promise of amendment for the future; 
and spiked two guns, from which, on leaving the harbonr, I shotild 
have been in imminent danger of a raking fire, from a lawless 
banditti, who might have secreted themselves from pursuit and 
punishment; for this I have been recalled, in displeasure; and 
subjected to a rigorous and penal prosecution : notwithstanding 
the clear proof, now manifest to the court, that the most beneficial 
consetjuences had resuUed from this operation ; that, instead of 
producing any impediment to the service, from the ill will and: 
irritation, either of the authoiities or inhabitants of the island; 
it served to awe the disatiected, and to inspire universal respect 
for our arms and character. Fnim the subsequent correspon.dence 
of lieutenant Sloat, it appears that governor Torres had been re- 
ported to have dropped some hasty expressions of anger; but, if 
he really uttered such, it was a momentary ebullition ; for his leit- 
ter to lieutenant Sloat of the ITth of March last, sufficiently de- 
monstrates his good will : and, indeed, contains warmer expres 
sions of thanks ft>r our exertions, than are to be found in any of 
his preceding communications. The effect, upon the' public in 
general, was decided and instantaueous ; indeed, the increased 



16* 

respect and confidence in the vigor, determination and efficiency 
«r our measures, and the consequent facilities likely to be ob- 
tained, in the pursuit of our object, exceeded all expectation. 
The public honors bestowed on lieutenant Piatt, at Ponce, only 
40 niik's from Foxardo, and expressily on account of the share he 
had borne in the atfair of Foxardo, may give some idea of the 
prevailinj;^ sentiment. 

As I have said, notliing could exceed the astonishment with 
which 1 received an intimation of the displeasure of my own go- 
vernment. The only apprehension, I entertained, and the only 
circu'Tistance, having the remotest tendency to self-reproach, in 
the whole affair, were, that 1 had fallen too far short of the point, 
to which my authority would have reached, and to wliich my duty^ 
under existing circunistances. should have pushed it: that I had 
too scrupulously and indiscriminately applied that precept of the 
divine teacher, wjiich is so humanely recommended by the venera- 
ble Grotius, in mitigation of the rigors of war ; and had suffered 
the tares to grow, where there was no wheat in danger of being 
routed up witli them ; or so little, in proportion, that it must ne- 
cessarily be choked by the tares : that I hail not used due precau- 
tion to ascertain, that there were even ten righteous persons to 
be found, among them, whom I encountered at Foxardo. Indeed, 
jf 1 were, at this day, under trial for not having seized and gar- 
risoned, or destroyed the village at the harbour; and even the 
town of Foxardo, as pernicious pirate-nests ; — for not having ar- 
rested and made prisoners, the people ; or those, at any rate, who 
had made any demonstrations of hostility ; I should have con- 
ceived myself in far more danger of censure, for having left un- 
done those things, which I ought to have done ; than now, fordo- 
ing those th'ngs which I ought not to have done. My best, if not 
niy only defence, in such case, would have been, the want of the 
force and the means, necessary to give complete effect to the 
operation ; and the eventual benefits resulting from the actual 
and more moderate operation. 

It may, possibly, be doubted, whether the pursuit and arrest of 
pirates on the high seas, under a regular commission from a so- 
vereign power, and with the jtublic armed force of the country, be 
a 2car; or a mere exertion «f the power of internal police, for the 
arrest and judicial punishment of criminals. In short, whether 
the want of a regular declaration of war may be insisted on. 

'Tis a remarkable fact, that what with the continually recurring 
wars with the Indian tribes, the Barbary states, and, more recent- 
ly, with England; not omitting what has been called the quasi war 
with France, in 1798, this country has enjoyed but very short in- 
tervals of peace, since the formation of the government; and yet, 
there stands upon record, but the single instance of a declaration 
of war, in tinit against England, on the 18th June, 1812. The con- 
stitution has vested, in Congress, the exclusive power of declar- 
ing war; but they may also provide for the calling out of the 
necessary force to suppress insurrections and repel invasions: 
and they have executed this last power by a special act, empow- 
ering the Pres;ident to call out the proper force on such occasion*. 



All our [ndian wars, carrying with them every characteristic and 
concomitant of the most regular war, have resulted from the mere 
act of having placed, at the disposal of the President, a military 
force for the protection of the frontier, and to repel the hostile in- 
cursions of the Indians. Wars, commencing in this merely de- 
fensive operation, have resulted in all the incidental consequen- 
ces, which we have seen exemplified in general Jackson's cam- 
paigns in Florida, and in all the preceding [ndian wars; for none 
of them were commenced under any more formal declaration, or 
with any more solemn preliminaries, than that of a hostile invasion 
repelleil by forte; and of a defensive war pushed, in its conse- 
quences, to oftensive operations, in order to make the defence ef- 
fectual and complete. So the wars with the Barbary states were 
commenced in the same way ; a naval force was placed at the dis- 
posal of the President, for the protection of our commerce against 
the liarbary cruiz.ers: and the history of our naval operations is 
too well known to this court, to justify me in taking up their time, 
by recounting the captures by sea, the blockades, the menaced 
bombardments, the intercepting of enemy property in neutral bot- 
toms, and all the other concomitants and incidents of the most re- 
gular of maritime wars; and which have all resulted from this 
simple measure of defence. 

So the modified hostilities with France, limited, as they were 
supposed to be, by the terms of the law, that authorized them, to 
a mere resistance of the abused riglit of search; and to the cap- 
ture of «uch of their public or private armed ships, as should be 
detected in committing ay:gressions upon our commerce, immedi- 
ately blazed out in all the ardor of a maritime war; unlimited, 
in its spirit and extent, but by the scarcity of wbjects, in the then 
condition of tlie French marine, upon which the valour and en- 
terprize of our navy could be displayed. We did not wait till a 
French frigate, flagrant with aggression, could be met; but, in 
what place, condition, or circumstances soever, met, she was, in- 
stantly, attacked, taken and held as lawful prize of war. 

The war against the pirates, in the West Indies, was just as 
fbrmally declared as any of our preceding wars, by land or sea, 
except the late war with England ; and carried, with it, all the 
concomitants and incidents of a public war; without regard to the 
form of the preliminaries, or the circumstances of its commence- 
ment. The machine, being once put in motion, was impelled by 
its own inherent energies; without the help ot proclamations, or 
other paper muniments. A naval force was placed, by Congress, 
at the disposal of the President, to be employed, in the most ef- 
fectual way, according to tlie hi'st of Ids judginmt, and under S2rjf- 
able instrnctiuns to the coinmandeis, to repel the aggressions and 
depredations (tf the pirates. f/j Under the authority of this act, 
and the instructions of the President, the war against the pirates 
was commenced and carried on. That it was a regular war, against 
public enemies, and entitled, not only to equal, but to greater 
respect, from other nations, than ordinary wars, is clearly esta- 
blished by reason and authority. 

. 7 ) Virk Act of March o, 1 819, N o1. 6^ p. 41<?, 
3« 



18* 

Pirates are not the enetnies of one nation only, but of the whole 
human race : and all civilized nations are, or ought to be, in league 
against them. There can, in the natuie of thing?, be no neutrals 
in such a war. As I have before remarked, the rights of war, in 
general, seem to have been derived, fur the most part, from the 
analogies of war against pirates. We find that the President, in 
his message to Congress, explaining and justifying the conduct of 
general Jackson, towards the Spanisli authorities in Florida, enu- 
merates (as he had before done in regard to Amelia Island and 
Galvezton,) tlieir encouragement of buccaneering, iis one of the 
enormities which had forfeited their neutral character. General 
Jackson, himself, in his official correspondence, justifying the ap- 
parent severity of his proceedings, against persons claiming Span- 
ish protection, can find no more emphatic reprobation of their 
character, as placing them and their abettors out of the pale of the 
Jaw of nations, and as justifying every extremity against both, 
than to denominate them land-jiirates. Grotius, as [ have remark 
ed, infers belligerent rights, in regard to third parties, not bein<: 
enemies, from the analogous right to destroy pirates, though to 
the danger and probable damage of innocent persons. 

If the question rested on general reason and authority, it would 
seem to be settled : but I have astrong-erand more practical war- 
rant, in the very instructions which 1 am charged v ith having vi- 
olated ; a document that loses none of the authority, due to its 
official character, from having been signed, and probably indited, i 
by a gentleman whose talents and learning had illustrated a high I 
judicial station in New York, before he was called to the admin 
istration of the navy department ; and arc? now added to the splen- 
did assemblage of the same fjualities, on the bench of the Supreme 
Court of the United States. These instructions lay down the doc- 
trine, and apply it to the actual case, in terms that leave not the 
shadow of a doubt of the relations in wliich 1 was to hold myself, 
a^ well towards the pirates, as the Spanish authorities and people. 

" You will announce,'- says my letter of instructions, " your ar 
rival and object to the authoriiies, civil and military, of the island 
of Cuba; and endeavour to obtain, as far as shall be practicable, 
their co-operation; or, at least, their favourable and friendly sup- 
port; giving them the most unequivocal assurance, that your sole 
object is the destruction of pirates. 

♦'The system of piracy, which has grown up in the West In- 
dies, has obviously arisen from the war between Spain and the 
new governments, her late provinces in this hemisphere ; and, from 
the limited force in the islands, and their sparse population, many 
portions of each being entirely uninhabited and desolate, to which 
the active aufhorifij of the government does not extend. It is 
understood that establishments have been made, by parties of these 
banditti, in those uninhabited parts, to which they carry their 
plunder, and retreat in time of danger. It cannot be presumed 
that the government of any island will aftbrd any protectitm or 
countenance to such robbers. It may, on the contrary, confident- 
ly be believed, that all governments, and particularly those most 
exjiosod, wUl aiVord all means in their power for their suppres- 



19* 

aioii. Pirates are considered, by the laws «f nations, the enemies 
of the human race. It is the duty of" all nations to put them down; 
and none, who respect their own character or interest, will refuse 
to do it; much less, aftord them an asylum and protection. The 
nation that makes the greatest exertions to suppress such banditti, 
has the ;;reatesX merit. In making such exertions, it has a right 
to the aid of every other power, to the extent of its means, and to_ 
the enjoyment, under its sanction, of all its rights in the pursuit of 
the object. In tiie case of belligerents, where the army of one 
party enlers the territory of a neutral power, the army of the other 
has a right to follow it there. 

" In the case of pirates, the riglit of the armed force of one pow- 
er, to follow them into the territory of another, is more complete. 
In regard to pirates there is no neutral party ; they being the ene- 
mies of the human race, all nations eive i^arties against them, and 
mail be considered as allies.^' 

i lust no time in establishing an understanding with the gover- 
nors of Cuba and Porto liico, as recommended by these instruc- 
tions ; and as fully appear from the documents accoiopanying the 
President's message to Congress, December 2, 1823, before re- 
ferred to. From these it has been seen that both the governors 
recognized, without hesitation, the meritorious character ol the 
war; pledged themselves for every aid and co-operation in their 
power; that, in various instances, they did co-t)perate; and actu- 
ally received priscmers, taken by our squadron, both at sea and on 
land, and had them executed. Thus, the presumption, upon which 
my instructions proceeded, that the local governments of these 
islands were to be considered and treated as allies, in a regular 
war, was confirmed and consolidated into a solemn compact, fed- 
lowed by all the practical and open evidences of alliance and com- 
mon cause. 

1 conceive it to have been clearly made out, that, in the simple 
character {)l' neutrals, the conduct of the people of Foxardo would 
have justified stronger measures, than any adopted by me, towards 
them : but as the subjects of an ally, embarked in a common cause, 
they were out of the pale of protection from their own state; 
they were identified with the enemy of their own state; and the 
worst species of enemy, pirates : they were themselves, either ac- 
tually or constructively [lirates; and, in attacking and subduing 
them', (if I had gone that length,) I should have attacked and sub- 
dued the enemies (tf the very state, whose territory and sovereign- 
ty lam charged with having violated. 

The only question, then, that remains, is, whether it were a vi- 
olation of my instructions to havo awed these fieoplc into some re- 
gard for the"irown duties, towards both the ii/ZiVs, and some great- 
er respect to the allied arms, by a display of military power, 
pushed no further than to produce the moral effect of operating 
on their fears; by a demonstration of what we could, and would 
do, if they persisted in their iniquities. The question, then, may 
be reduced to this ; whether a set of instructions, which had pass- 
ed through the hands of so eminent a lawyer im\ judge, as Secre- 
tary Tiiompson, and had received the sanction of his name, had 



been so improv-idently plirased, as to forbid me from doing llie 
very thing I was sent to do; namely, from protecting the co»i- 
merce, and the citizais of the United States, from piracy ; when 
it should so happen, that the perpetrators, or (^uliat is the same 
thing,) the abettors, associates and accessories of the perpetrators, 
gnd,so identified in appearance and circumstance with them, as ren- 
dered it impossible to make any specific distinction between princi- 
pal and accessory, appeared in tiie persons of men, who had added 
to the crime of piracy, that of flying in the face of the authority of 
the government under which they pretended to live. An absurdi- 
ty upon the face of the proposition; and therefore impossible to be 
inferred from any sensible and well advised instructions. 

Still it may be more satisfactory to enter into some analysis of 
that document,, in order to see, if its terms give any colour to SQ 
strange an imputatitm on its consist^jncy. 

Let it be remembered, that the question is not whetlier my in- 
structions, in terms, import an authority to do tlie act ; but, whe- 
ther they prohibit it. It has already been shown, from reason, au- 
thority, and precedent, that, in proceeding upon tlie principle of 
self-defence, to attack or repel the enemy by the same means that 
he uses for our annoyance, no act of hostility is supposed to be 
committed against the neutral or allied sovereign; when his ter- 
ritory or his subjects are involved in the consequences of belli 
gerent operations. That it was not to attack or punish Spain, but 
simply to repel the attack of the enemy, tlirough her instrumen- 
tality, ^and with her means, was the principle assumed through 
out the whole of general Jackson's justification. To have madf 
war upon Spain, for any cause, either for her violation of treaties, 
or for her breach of neutrality, could have been justified, in no 
other way, but by the express authority of Congress ; who have the 
exclusive jurisdiction of war and peace; and are the exclusive 
judges when, and for what provocations, war shall be declared. 
it is for them, and tiiem alone, to decide whether national insults 
-or injuries shall be resented or waived. The utmost extent of 
the President's power is to call out the force of the nation to repel 
invasions: in the exercise of which povver, it is true, almost all 
our belligerent operations, since the existence of the government, 
have been carried on. All these operations, then, upon SpaJiish 
territory and subjects, by way of self defence against our enemy, 
result from the incidental rights of actual war; as fully vested in 
every naval or military commander, to whose hands t!ie arms of 
the republic are committed, as in the President himself. The on- 
ly dirterence is, that the President, in his quality of commander 
in chief, may restrain or modify, at pleasure, tlie practical exer- 
cise of the right, by them in command under him ; but, in the ab- 
sence of such restraiiiino; order, these hiii-h belli";erent riithts ex- 
1st, in theii: fuH force, in the person uf the oflicer in immediiite 
command, whatever be his rank. Upon that jirinciple, was the 
capture of the Spanish tov. ns and posts, in Florida, explained and 
justified. The American note, before cited, expressly sates that 

feneral Jackson had iio order, from his government, to take them ; 
ut that he decided, from his own discretion, upon the measure; 



21* 

"of the necebsity foi whicli he had the most effectual means of 
forming a judgment; and the vindication of which is written in 
every paj^e of the law of nations, as well as in the first law of na-' 
ture, self-defence." 

Then my justification requires no order or instruction, com- 
manding or authorizing, while it is indispensable to the criniina-^ 
tion of my conduct, tliat some order should be shown foj-bidding 
me to exercise the otherwise clear right, to adopt the higlily ex- 
pedient, necessary, and, in all its public results, most fortunate 
measure, now in question. The incidental power, to its fullest 
extent, was inherent to my command ; unless that command had 
been stripped of it, by a positive order. 

This brings us directly to the question, whether my instrucfions 
of the 1st February, 1823, do, in terms, foi bid me to exercise this 
power ? 

I maintain, not only that there is the absence of any .inch pro- 
hibition, express or implied, but tliat tiie course of conduct which 
1 pursued, is enjoined by my instructions : and if J had neglected 
that injunction, I should, at once, have basely betrayed the high 
and sovereign rights of war, with which the glory and safety of 
the nation are so essentially connected ; and liave violated the let- 
ter and spirit of my in3tructii)ns, by a course of conduct directlv 
opposite to that now imputed to me as a disobedience of orders. 

I shall proceed to lay down a few simple rules of interpretatinri, 
by which the sense, in which I so clearly understood and acted 
Tipon my instructions, may be demonstrated as their true import 
and meaning. 

1. The reason or final cause; the main end to be accomplished, 
deserves the first consideration. Then, I was appointed to the 
coumvand of the squadron, '• for the purpose of repressing piracy, 
and aftording effectual protection to the citizens and cummerce of 
the United States." 1 am told that it is my "duty to protect our 
commerce against all unlawful interruptions, and to guard the 
rights, both of persons and property, of the citizens of the United 
States, wherever it shall become necessary." Such is the final 
cause, or end of the armatnent; and, upon that, did general Jack 
son mainly rest the justification of his operations in Florida, when 
he appealed to that part of his instructions from the war depart- 
ment, which recommends a speedy and successful termination of 
the war, as being required by the honour and interest of the 
United States: and he argues that he pursued the only means, by 
which he could have cftpctUiitcd such intent : and that the intent, 
both general and particular, which is expressed in the oriler, jus- 
tified th(i means: these means being, in themselves, entirely con- 
formable to the estiiblished laws and usages of wdv.(a) The means, 
by which I was to hnve accomplished the object of mv commtind, 
were left to my discretion, under the guidance of some general 
rules, not, at all, more restrictive of the itdieient authority of my 
station, than those prescribed to general Jackson ; if as much so. 
The limitations of my authority, from w hich any thing, like a pro- 
hibition, may be inferred, are expressed in tvvoclauses. I am, in 

CaJ Vide NUcs's Rcg-ister, Vol. 18, j). 331 — 2. 



22* 



the first place, tuld that " wliere a government exists and is felt, 
you will, in all instances, w^H'ct \h<^ lovol authurilles; and onlv 
act in aid of, and co-operation with them :*' and again, *' in no case 
are yoii at lihorty to pursue and apprehend any one, after having 
been ("oibidden to do so, by com j/eti'ht anthoritij of" the local 4;o- 
vernmoit.'''' Now the term, " •'•iiveinnient.-' or " local jsovern- 
ijient. certainly means the supreme power ot tlic country: and, 
in reference to the Sparnsh islands, means the several provincial 
i,ntvernn)cn(s, there estai)lishe(i ; called local, in contr;.distiiiction 
to the t:.(iveriimeMt of the mother country, which is supreme over 
alt. it cannot be pietendod that the term comprehends the infe- 
rior magistrates ol obscure towns and vill;iu,<»s. Then this govern- 
inentmust r.ot only r.rbf, but nuist be /V//: and felt to what pur- 
pose, and to what extent? ^Surely to no less, than to maintain, 
practically ;ind elliciontly, its sovereign and actrve authoriry in 
the coutitr\ ; to the puipo^e and to the extent (d lioldinj;- it invio- 
late from the couimoj) enemy. In a preceding part (tf theinstruc- 
loiis, places, to which the "active unihoriii/ of the govertunent 
•'oes not caicHd,^^ are spoken of: nor can it be less than the active 
uuhority of the jiovernmcnt, in any case, that I was bound to res- 
pect. 1 am told, repeatedly, in niv instruction, that I am to pre- 
sume that the Spanish nnthoji ties Anil jieople will make common 
c.'.Hise with, me, and c^jv/jc//;/ co-operate with me: I am told so in 
llic very clause, which retpiires me. to respect t!ie local gcivern- 
ir.ents ; and strange, indeed, if I had been recpiired to res[)ect them, 
on any other terms. 1 was acting not onl.v upon this presum[)tion, 
but tipon tlic faith of direct and positive assurances, from these 
vtry local governments, that they would so co-operate ; confirmed 
by unequivocal acts of co-operation, \\ hen 1 came to discover, 
upon these islands, extetisive settlements of pirates, in the various 
dis!i;uises of {ishermen, ik,c. when I found considerable districts in 
(he possession, or under the cotitroiling inHuence of pirates, would 
it have comj)ottcd with due respect to the local ;J:overnments, to 
have presumed that such inlumous ainises wei'C by their aulliority; 
and that, by attacking the pirates, I should be invadin<>- the rights 
and dignity of the govertinients r Are these pirates to be viewed, 
in such circumstances, as eillier " i5[)anish autliorities or people;" 
in the sense <dioy instructions r If such v.ero the presumptions 
poll whicli we were toar.t, wc committed innumeiable transgres- 
rions, in tUeinstances of the sever;;! pirittical establishments broken 
np and destioyod, w itimut complaint, on the coast (d Cuba, as be- 
'i>re mentioned. Jhit tlie. meaning of this injunction to respect 
\:r- liicai authorities, where a governn-.ent exists and is felt, is de- 
ideil by its immediafe context : — lni' it goes o'n to tlirect that I 
•h;dl "only act in nid of. and ofiperuiinn with them.*' Now, 
the one of th'.'Se injunctions is jysfas obligatory as the other. 
Then), whom I am to " respect," I must al)ro co-operate with and 
aid : thcv must be in a condition to chalienge, for themscdves, both 
>;r neither. Tiien, tf 1 aui to respect the people a'.Mt authorities of 
• >e islands, who are identilied in cliaracler and conduct with the 
urates, 1 must also "act in aid of, and co-operation Vvith them :" 
")d ho'-v conaistf-nr this tnav be uith the main end and aim ei re- 



23* 

pyessins piracy, and alV(ir(lin;2;*^ffectual protection totlfC commerce 
and (iti/.ens of tlie United States, nee<ls no remark to illustrate. 
"When I am told that 1 must not continue the pursuit of pirates, 
on shore, " after having been forbicUjen to do so by competent au- 
thor it >/ of the local <^overmnent;''^ should 1 have been justitied in 
accepting the prohibition of the pirates themselves, or of their 
known, or stiongly suspected associates and accessories, as from 
•such competent anthovitu? The only prohibition ever received by 
me, was in the form of open hostility and resistance ; no other- 
wise to be accounted for, than as an attack upon the ■mppressers, 
and a defence of tiie professors oi' piracy. Lieutenant HIatt was 
not forbidden thetpursuit and inquiry, which occasioned his first 
visit to Foxardo : but he was, at lir^^t, received with insidious ci- 
vility, and a professed respect to his oflicial character and mis- 
sion : and, in that jruise, was conducted to the town; wliere the 
treatment, he afterwards received, was e(|u:illy unaccountable, up- 
on any other ground, than that of the ponple, or a^reat niajoritv of 
them, making common cauj^e, or being identified wilh the pirates. 
I am further directed, if •' the crews of any vessels which I 
iiave either seen engaged in acts of piracy, or have ji«s'^ cause to 
suspect as being of that character, retreat into the ports, harbours 
or settleil parts of the islands, 1 may enter in pursuit of them, 
tor the purpose of aiding the local autliorities or people, as the 
case may be, to seize and bring the ofionders to justice ; previoivs- 
ly g-ti'Ui^ ?jof/ce that it is my sole object." Then here is an af- 
firmative direction (not necessary to comiiUinicute the authority, 
but only declaratory of an authority already inherent to my com- 
mand) to pursue the enemy into ttie ports, Iiarbours, and settled 
parts of the islands; — but qualified by a limitation, which neces- 
sarily supposes the presence of auikorities ov people who have 
the will, and, with my aid, the power to seize the otlenders and 
bring them to justice. liut suppose no nuthorities or people of 
that description are to be found; and, though the country be evei" 
so thick jy settled, it is occupied and held by pirates and their ac- 
cessories ; who exert a controlling iulluence and eHocliva pow- 
er over the district; and hold what people or authorities, there 
may be, in chec'v, or in close alliance : is not the hypothesis, upon 
which the limitations of my othervvisjj absolute authority are ex- 
pressly foutuled, done away ; and is not such authority, conse- 
quently, left in its pristine force? — Is there any possible con- 
struction of the document, that could require of me to aid and 
assist people to seize and bring themselves injustice.^ The very 
case, put by my instructions as requiring the pursuit of the pirati- 
cal crew, was presente<I : I had just cause more than to siiapect th-Al 
such a crew, which had rubbed an ".i;«pric'«// cifize/i," atSt. Tho- 
ma.-,had retreated with their plunderto Foxardo; and, in the pursuit 
oftbem, I aui encountered, at the threshold, by men of the most 
(■([uivocal appearance, who stand forward (o resist the puv.^ucrs. 
and to defend the pursued; witliout paiiey or warning of anv 
kind. Tiien, was I not bound to conclude that the-^e men knew 
what they were about; and tliat the defenders and tlie persons 
pursued were the same? I knew, to a certainty, t-liat Mk^v \\(>.it 



24* 

not, and, in the nature of tliin;;s, coulil not be acting under th« 
autliority of the local {2;overnnient ; but I had the strongest 
grounds to presume, that they were actin;»; ai^ainsf it. What rea- 
son had I to presume, that they had any better authority than the 
pirates uh'i li»ed upon captain Cassin, near Cayo Blanco, and 
upon lieutenants Kearney and Newton, at Cape Cruz; and who, 
on other occasions and at other places, committed tlie like vio- 
lence ; and, upon being pursued ro the interior, were found to be 
settled in fishing villages, defended by cannon advantageously 
posted on the rocks ? 

It seems to me plainly impossi'de to construe tnv instructions, 
aa aproh>biti(m of the operation upon Foxardo. consistently, either- 
witli their c^mtext, or with the prominent and declared reason, or 
final cause of the cour«e of service, which they prescribed. A 
learned anrl judicious author has said that " the nature of every 
law must be judge^d of by the end for which it was made, and by 
the apfne^is o\ things, therein prescribed, unto the same end:" a 
rule which absolutely concludes the present question. 

2. The rule, which requires an expression to be interpreted 
*' from its relation to what goes before and what follows the place 
where it stands," has been embiaced under the head of rational 
interpretation already considered. But another rule, entering 
largely into every question of interpretation, is derived from the 
" circumstance of the same, or equivalent expressions, being used 
by the same person, to express the same intentions, on other simi- 
lar occasions." (m) 

Upon this point, it becomes material to examine the orders, or 
instructions, under which general Jackson acted, in the campaign 
before meiitione<l. The restrictive clauses of these orders, being 
more directly to the point, shall be more particularly noticed. 
These are explained by two documents: 1st. the President'* 
message to Congress, 25th March, 1818, declares that, "to the 
high obligations and privileges of the great and sacred right of 
self-defence, will the movement of our troops be confined ; orders 
are accordingly given to the general, not to enter Florida, but in 
pumuit of the enemy; and, in that case, to respect the Spanish 
authority wherever it is maintained t^'^ (u) 2dly. In Mr. Adams's 
letter to our minister at Madiid. the order is laid down in nearly 
the same terms, (o) The otdy Jitterence between the terms of 
the restriction upon him, and upon me, is, that in tny case the 
government must he fett ; in his, its authority mai)itained : And 
what possible ditl'erence there niay be, between these terms, is 
explained (if indeed explanation can be necessary.) by the Presi- 
dent's subsequent message, of Novetuber 17, 1818, where this vei y 
expression (d a government's being felt, is used :(p) and, though 
there v,as a regularly organi?.ed colonial jjovernment, in posses- 
iioa of towns and fortifiexl places, with well appointed garrisons ; 

(?/t) Gi-o. dc jur. bfl. &. pa. Ti. 2. ch. 16. ^ 7. 2 CaiTip. Grot. p. 145-6 

(>/) Vid. Nik-s's lifgistc-r, vol. 15, j). 100. 

{o) Vid. il>i.l. p., 371. 

(jj) Vid. Nlks'sUcgibtcr, vol. 15, p. 213. 



25* 

within the precincts of which, Spanish authority was paramount 
and undisputed ; yet, because (heir authority was confined, almost 
exclusively, to tlie walls of St. Augustine, Pensacola, &c. ; be- 
cause they could not exercise an efficient and active authority*, 
over those without the walls; and because all these strong holds 
were made subservient to the purposes of Indian hostility ; the 
authority of the government was lield not to have been "■feW\ 
any more than " inaintained^\ even within the walls of garrisoned 
towns; not even in the capitals of their provinces, where the go- 
vernment actually resided. These very places were taken ; be- 
cause the authority of the government was neither maintained 
nor felt, to the extent required by her neutral duties, and neces- 
sary to allow complete effect to our lawful means of repressing 
Indian hostilities. When tiie general found that the government 
was not sufficiently maintained, or felt, to fulfil the final cause or 
end of his militaty operations; but tended to defeat it; he was 
justified in concluding, that it was not maintained or felt, to the 
degree, supposed by the limitation in his instructions: and, of 
course, that the limitation fell with the hypothesis, upon which, 
it had proceeded. 

Lest it be surmised that the government was secretly actuated 
by any policy to attack and undermine Spanish power iu the 
Floridas; — not applicable to the state of things in the West- 
Indies : (if it be necessary to vindicate the government against 
any such double dealing,) I may refer to the successive orders, 
frijm the War Department, to generals Gaines and Jackson, from 
the 2d December, 1817, to the 6th February, \Sl8.(q) By these 
it appears that it was contrary to the policy and inclination uf 
tlie government, to be embroiled with Spain, at that time. The 
atate of the pending negotiation is expressly referred to, as ren- 
dering it impolitic to provoke her ; and general Gaines is instruct- 
ed, that, if the Indians, when pursued into Florida, s/ie/^e?" them- 
selves under a Spanish fort, he is to stop and give notice to the 
government. 

A practical construction is given to my orders, by the tolera- 
tion of all our previous descents upon Cuba; followed by the des- 
truction of settlements, having all the appearance of innocentfish- 
ing villages : and which were, nevertheless, found to belong to pi- 
rates in disguise. It has been seen how far the arts of deception 
were carried, on the coast of Cuba : wliere the spectacle was pre- 
sented of old men, " with bald heads and hoary locks exposed to 
view," like the venerable sires of a peaceful and innocent genera- 
tion of fishermen ; and of matrons, as if present, either to 
implore protection for themselves and helpless offspring, or 
(according to the account of o|ie officer,) like a celebrated he- 
roine of a modern romance, by their exhortations and example. 
to inspirit their husbands and sons to defend, or avenge their 
homes and altars :(r) but where all these plausible and imposing 
appearances pmved to be only deceitful covers, to the most atro- 
cious of piratical establishments : for the utter extinction of which, 

(q) TideNilcs' Reg^Ister, vol. 15, p. 303 — 5. 

{r} Vide JL.€;itcnant Kearney's report before cited, (and ante, p. QQ.) 



26* 

\ipon no other warrant, or authority, than the cliscretio» of the 
officers sent in pursuit of pirates; and acting upon the eviden- 
ces and presumptions, by which their conduct was to be deter- 
mined, in every new exigency of the service, these officers had 
received the approbation and apphiuse of the government and 
the country. Then, if it were lawful to seize and chain these 
modern Proteii, on one shore, why not on another, equally the 
theatre of their frauds? Had they possessed the fabled spirit of 
prophecy, ascribed to their ancient prototype, it must have puz- 
zled themselves, to divine, how I could have incurred the dis- 
pleasure, either of the Spanish government, or my own, by pur- 
suing them on the coast of Porto Rico, any more than on that 
of Cuba; at Foxartjo, any more than at Cayo Blanco or Cape 
Cruz; as before practised, without censure or question, in for 
mer instances.('sj 

But suppose 1 liave failed to establish the construction of niv 
orders, as understood by myself and now explained : does it fol- 
low that I am guilty of any disobediejice ot orders, under the na- 
val articles of war? The negative may be clearly maintained on 
two grounds. 

1. The naval articles of war look only tf> orders given by a su- 
perior officer in immediate command : n(*t to general instructions 
From the government: the observance of which, it is supposed, 
the government has, in its own hands, the means of enforcing. 

2. The instructions are discretionary^ and no officer can be 
charged with the breach of a discretionary order, unless he wil 
fully and corruptly misconstrue and pervert it. For no mistake oi 
judgment can be, in the nature of things, punishable. Here is 
the law of nations laid down to me, in my instructions; to be ap 
plied, in a great variety of supposed circumstances, to fiicts as 
they arise. A number of rules, defining the relative rights of 
the parties, are prescribed ; requiring the exercise of a discreet 
judgment to expound them. I apprehend it to be impossible for 
any man to review the circumstances of this case, without ad 
mitting, whatever be his opinion of my judgment or my reason 
ing, that I might, in the honest exercise of my reason and 
judgment, have done the act, with which I am charged. 

To bring me within the scope of this most penal charge, it must 
appear that I was, either, positively ordered to do something that 
I omitted ; or positively forbidden to do something that I did : 
or that, under pretence of executing a discretionary authority. 
I corruptly or maliciously abused it. 

CHARGE SECOND. 

The second branch »f the accusation Ihas, from (the first, 
occasioned me no little perplexity ; which has, in no degree, 
been relieved by any elucidation, in the course of the present trial. 
Whether any, and what sort of justification it made incumbent on 

(s) Vide Commodore Porter's report, May 10, 1823 ; Captain Cassiii's re- 
port, April 28, 1823 ; and Lieut. Com. Kearney's report, August 10, 1833, 
before cited. (Ante, p. 82—4, No. 9, 10, and 11.) 



27* 

ine, was not so easy to determine, from any matter of criminatioU) 
either distinctly pronounced, or properly to be inferred from the 
context of the charge or the specifications. 

The process, neither of the evidence nor of the argument, by 
which the gist of the prosecution, and the points on which it turn- 
ed, should have been distinctly explained or openly vindicated, 
has tended to possess me with any more clear, or detailed in- 
formation of the specific quality and degree of the offence, 
charged, or of the penal consequences supposed to be attach- 
ed to it, than mighfhave been collected from the extremely 
vague and indefinite, if not unintelligible terms of the charge and 
the specifications. Indeed, the impenetrable reserve, affecting 
nivstery, if nut studious of concealment, by which such dim and 
paVtial views of these points have been vouchsafed, would seem 
to indicate the darkest suspicions; and a necessity for a prosecu- 
tion as unrelentingin its purpose, and as unscrupulous in its means, 
as could be at all admissible in any judicial procedure; as if it 
were dealing with some wily and veteran offender, skilled and ex- 
perienced in all the subtilties of evasion; and who was to be caught, 
in his iniquities, only by pouncing upon him unawares; and by 
concealing horn him the quarter of attack ; till the unseen blow, 
puished home and felt in all its force, should have overwhelmed 
him with the shame of open detection; while unprovided with a 
subterfuge, and cut off trom all retreat. 

I was instructed by the clear and unhesitating advice of my 
counsel, confirmed by as clear an insight into the merits of the 
question as could be obtained by my own common sense, to con- 
clude, that this branch of the accusation purported to charge me 
with no offence, of which this court had any judicial cognizance : 
and my own conscience, as far as it had been enlightened by any 
knowledge or conjecture of the transactions, so darkly alluded to, 
was equally void of any offence; to which any degree of guilt, ei- 
ther legal or moral, could be imputed. Indeed it was clear enough, 
upon the face of the accusation itself, how sedulously the respon- 
sibility of having imputed any thing, immoral or dishonorable, had 
been guarded against : and, accordingly, that instead of a definite 
and precise charge, supported by specifications, ii* any proper and 
legitimate sense of the term, vague censures clothed in loose gen- 
eralities, and in the most ambiguous and perplexed phraseology, 
had been introduced, by a strange abuse of terms, under the name 
of a charge and specifications. 

■ Perfectly consistent with the original frame of the accusation, 
has been the method, in which it has been followed out, in the 
proi»f and in the arguu>ent. 

Voluminous masses of documents, consisting of a miscellaneous 
correspondence, and a printed pamphlet of more than one huii- 
dred pages, were produced in evidence, under the several speci- 
fications; and indiscriminately read, from beginning to end; without 
anv specific designation, or reference whatever, to the passages oi- 
circumstances, wherein the offensive matter was supposed to con- 
sist: with the single exception of the alleged omissions, deficien; 
cies, and verbal inaccuracies, charged upon that part of my pam- 
phlet, which purports to set out the proceedings of the court ot. 



28^ 

inquiry ; which were, indeed, vouchsafed after the trial had prd- 
ccoded for more than a fortnight. Additional masses, little less 
Toluminous, of documents and other collateral evidence, have been 
introduced, and, in like manner, read indiscriminately, from begin- 
ning to end, without the slightest intimation of the charge or the 
specification to which they were to be applied ; far less of the bear- 
in<i, they were supposed to have, on any point of the accusation; 
or of the purpose and object of their introduction. 

Jn two instances, witnesses have been introduced to authenti- 
cate numerous documents, without naming or describing them; 
and even without any enumeration or description of them being 
entered on the minutes, which record the evidet)ce by which they 
are authenticated. Oar request to have these documents openly 
exhibited and subjected to our inspection ; or, at any rate, to be 
furnished with a list and specific description of them, has been 
denied; and all, that was vouchsafed to us, was an intimation, that 
it would be time enough for us to see and inspect the documents, 
when they came to be successively produced, as wanted, from time 
to time, in the progress of the trial. In the mean time, they have 
been kept, under lock and key, wholly inaccessible to me ; and, 
to this very day, I am ignorant, how many, or what part, or, in- 
deed, if any of these documents have since been found useful to 
subserve the ends of the prosecution, or have been actually used 
as evidence; though I presume, (but without any responsible as- 
surance of the fact,) that some part of my official correspondence 
with the navy department, since read and attached to the record, 
entered into the composition of this strange paradox, of documents 
openly proved in a court of justice; and yet unknown either to 
the court, or to the party against whom they were produced. At 
a late stage of the trial, interrogatories are exhibited, for the ex- 
amination of a witness by deposition. Explanation is asked, 
and unhesitatingly denied ; first, of the authority for taking a de- 
position, instead of confronting the witness with the accused ; as 
indispensably required ('with a few stated exceptions, expressly 
provided for by statute,) in every criminal case; and, above all, in 
every capital case ; and this, not only in the absence of any direct 
authority to be found in the naval articles of war, or other law, 
but in the face of an article expressly requiring that the witness- 
es, exauiined before a naval court-martial, shall be sworn by the 
President of the court: 2d, of the purpose for which this deposi- 
tion was wanted, and of the point to which it was to be applied; 
in order that I might frame the cross interrogatories, whicli I was 
called upon to furnish, with a discreet forecast of the operation 
and effect of the evidence upon my cause. The deposition, taken 
before a county-justice of the peace, after having been held up, 
for S'>me days, without any notice to me that it had been received, 
U at length produced and read to the court, under the same si- 
lence and reserve, as to the bearing, or relevancy, it might be 
supposed to have upon any matter put in issue by any one of these 
charges and specifications : the want of relevancy and pertinejicy, 
to any such matter, being apparent upon its face. 



29* 



Whcthe^ these rigors were irregular or admissible, in the prat> 
ticc of courts-martial, this court has not been called to decide^ 
for I was myself wearied out, and apprehensive of tatiguing the 
court, and exhausting its valuable time, by raising my voice, ffO 
frequently, against the continually recurring aberrations, from the 
established and salutary forms of procedure, usually observed m 
criminal prosecutions; and equally indispensable to the due ad- 
ministration of justice, in a military, a? in a civil court. 1 matic 
this sacrifice of my right to complain and to remonstrate, with no 
other hesitation, but what arose from my reluctance to sanction a 
dangerous precedent ; the pernicious consequences ot ^hich, to 
the principles of military jurisprudence, were incalculable. xMy 
own innocence I knew to be too firmly seated in conscience, too 
strongly fortified by its internal strength, and too well guarded 
by external evidence, to fear either secret sap or open assault; 
and it shall not be my fault if any transgressions, agauist the 
wholesome rules of judicial trial, be drawn into precedent here- 
after. , J J • 1 1 

My own reason informed me, and the clear and decided au- 
thority of every approved author, who had treated of the elements 
or practice of military law, was united, with undeviating unani- 
mity, in pronouncing, that every alleged oftence against imlitarv 
law, as a-ainst the general law of the land, must be determined 
by some fixed and known rule of action, instituted by positive 
law, and defining the character and degree ot the oftence ; and 
that it must be shewn, by the terms of the accusation, to be cogniza- 
ble and punishable under such law. The grounds and principles, 
upon which this proposition may be demonstrated, and by which 
the present accusation, after having that test applied to its terms. 
is necessarily excluded from the legal cognizance of the court, 
have been amply unfolded, in the preliminary exceptions, taken 
by my counsel, "to the 2d charge and its specifications. In the 
answer to these exceptions, the undisputed power of the execu- 
tive to discharge, from service, any officer holding under its ap- 
pointment; in other words, to revoke a commission grantetl dur- 
ix)^ pleasure, is adverted to.— 'Tis intimated that this power has 
been exercised, and may be again, to protect the executive from 
the contumelies of its subordinate officers; that, in this instance, 
the executive was under no necessity to have remitted me to a 
court-martial for trial ; but might have judged and punished ,ne 
by its own inherent jurisdiction, and upon the responsibility ot 
its discretionary power ; and that, having this inherent power and 
jurisdiction, it has, by the act of preferring these charges, pro- 
nounced its own opinion of my conduct; and has required, of this 
tourt nothino- more than to inquire and ascertain, whether the 
oftence, of which it is taken for granted that I am guilty, may 
be explained or palliated b> any circumstances of excuse or miti- 
cation. Then if I may rightly comprehend this reasonm-, this 
court is now exercising a jurisdiction, ex gratia ; as a mere con- 
cession from the executive ; without any necessary and legal cog- 
nizance of the matter; and, instead of a grave tribunal of cnm- 
iiiai judicature commissioned to pronounce the solemn judgment* 



30* 

of the law, iiprm the 2;uilt(>r "mnocence of a prisoner accused ot 
hi^h ortences against the law, we have an anomalous sortot inquest, 
»n- cnimcil of cerenumies ; which is to report, to some superior 
autliority, every bteach of decttrum or j^ooil breeciins;, from boor- 
. ish rudeness, to the slijj;htest deviafion from, obsequious respect, 
by which fastidious pride, or apprehensive delicacv might be of- 
fen<led. tn that view, no puiiisbment is to be inflicted by the 
judijmcnt of ihis court ; but the case is to be aguin remitted to 
the executive, for him to decide, froui the circuntstances reported 
by this court, upon the expediency of exerlittg his power to re^ 
move me from office. 'Tis fur(hei- implied, if not laid down in 
terojs, that the executive requnes not the opinion of this court, 
whether the farts speciiied under the second charge be true, nor 
whether they do, in themselves, amount to " insubordinate con- 
duct and conduct unbecotuing an officer;" both the fact and the 
corollary being; aheiuly established, by the opinion of the execu- 
tive manifested in the exhibition of the charge ; and the function 
of this court being limited to a report of any circumstances of 
excuse or mitigation to be ottered on my part. Still, the argu- 
ment of the judge advocate, in answer to the exceptions taken by 
my counsel, concludes with a clear and unhesitating opinion, that 
the charge and specificarions are not only sufficient, in subs;ance 
and form, but that they do specify offences of a military charac- 
ter; for which the accused may be arraigned and tried before a 
court-martial. — \Vhethery7/t//is/<m^n/ be understood to be involv- 
ed in the anaigiimeiit inu\ trial, here spoken of; oi- to be deferred 
to executive d»scretH)n, so as to reduce arraignment and trial to 
a mere inquisition into circumstances of excuse and mitigation : 
or whether a judicial power to try and punish, concurrent with 
the executive power to judge, summarily, upon view ; and to 
punish, by removal from office, be aflirmed ; — are questions which 
it would bediflicult to determine, by any lights in the preliminary 
exposition, that lias been elicited, of the principles upon which 
the jurisdiction of this c<mrt may attach itself to the case. 

Having still to grope my way, through a dubious twilight, to a 
knowledge of what may constitute the gist of my offence, and 
the essence of the accusation, in point both of law and fact; I 
must proceed, by the help of anticipations and conjectures of the 
point of attack, to detend myself, tiie best I may, on every ground. 
Thousrh I had yielded mv conviction, with such absolute con- 
fidence, to the force and conclusiveness of the reasons, by which 
the preliminary excepli<»nn of my counsel, to the sullieiency of the 
Sdch.tigeand its specilications, had beeu sustained; yet I should 
not have been, in the least, disconcerted, nor, as I mntgined, ma- 
terially curlail'd of my defence, if such exceptions had been 
overruled, by any new and unexpected arguments, which the learn- 
Mig and abilities, enlisted against me, might iiuve suggested in 
answer. I shouUI, without regret, liave given undisputed sway 
to the philological antl legal disquiaitioms, which were supposed 
to have lurnished such \ict.orious arguments, in \ indication of the 
charge and specifications, excepted to. liut when t found myself 
assailed by a species of nri^nme.rduni ml honiinem, digressing in- 



31* 

to circumstances foreign to the point in question ;and proceeding 
upon the most extraoitlinaiy misappi eheu-;ions of my lunjiua^e 
anil conduct, and of the niotivj-is uitVcttd frooi tliem ; i could 
not forbear to discharge myself from the imputalions, and dis- 
claiui the inferences, that might liave resulied fioni the otticial 
and recorded misconstrnction of my conduct and motives. 

1 adhere, with undiminished confidence, to the propositions of 
law, which have been stated and illustrated by my counsel, to ac- 
quit me of any necessity to answer the 2d charge and its specili- 
calions: but before I advert to the grounds, upon which they are 
either maintained or contested, 1 must be permitted to pass, very 
briefly,under review, the collateral topics of disparagement, which 
have been biought in aid of the arguuu-nt against them. 

1. As an evidence of my dispositioj; to raise captious and futile 
objections, if not of my want of cau<lor, it has been statt'd that 
I complained, on the first day of the court, of not having been 
served with a copy of the charges and specifications; and yet, the 
next day 1 produced acopy, with which 1 had been regularly served, 
and which dittered from that, upon wiiich 1 had been arraigned, 
only in two letters. The fact is well remembered, that 1 i.\ave, as 
a reason for demanding afresh copy of the charges and specifica- 
tions, a difference' I had discovered between the copy read, and 
that in my possession; and my written explanation, the next day, 
\<hich I hope forms a part of the record, minutely explains the 
diffeience between the two. Nor is the stated result of the mi 
nute calculation, which reduces the variance to a mere difference 
of two letters, in the spelling of a word, by any means correct or 
fair. The variance (no matter in how many letters or words it 
consisted) was in the date of one of my letters, specified as "in- 
subordinate and direspectful :" the letters were, no ollierwise, 
specified or identified, than by a naked reference to dates ; — the 
one copy of the specifications gave a letter of one date ; the other 
copy omitted that, and gave a letter of another date; and so, 
the variance consisted not in the difference between the spcllino- 
of tltirtieth and thirteenth, but in the entire letter, which consti- 
tuted one of the documents of the charge ; and, in one sense, in- 
deed, answers to the result of the judge advocate's calcuhition 
of differences ; namely, a difference ui two letters. But if it be 
true, as has been suggested, that the only office of the court, in 
this trial, is to offer propitiation to another authority, by which I 
stand already condemned, upon the strict law and the fact ; how 
hopeless the task of exculpation or excuse, if the spirit, in which 
the charges have been instituted, be consentaneous with that by 
which they are prosecuted to judgment. For here am I charged 
with liiigiousness, illiberalily, and want of candor ; because 1 had 
simply pointed out an important defect in the procedure against 
me; all advantage from which I had voluntarily waived; and had 
even ctmceded to the piosecution an election to adopt either or 
both of the leitfi 9 referred to, in the two copies of the specifica- 
tion ; only requiring that the election should then be defijiitely 
made- 



32* 

2. [ am also represented as having appealed to the judge advo- 
cate to withdraw the second charge ; and even to have followed 
up that application with some intimation sounding in menace: and 
it is thought necessary gravely to expound the relative powers and 
duties of the judge advocate, from which any discretionary au- 
thority to ivithdraw a charge is excluded. The only circumstance 
from which, as I am given to un'derstand, this attempt to escape 
from the prosecution, either by the lenity or the fears of those who 
were to uphold it, has been inferred, was a simple appeal made 
by my counsel, purely out of the courtesy usual on such occasions, 
to the candor of the judge advocate, as the law-adviser of the court, 
upon the validity of the exceptions to the second charge. As 1, 
and every person present, with whom 1 have compared notes, most 
distinctly and clearly understood the passage of the transaction 
alluded to, my counsel was insisting upon the right of reply, if, 
contrary to his expectation, any answer should be offered to the 
reasons advanced in support of his exception to the 2d charge and 
specifications; and, after explaining that, according to all judicial 
practice, the right of reply lay with that party who had origina- 
ted the motion, and supported it by an opening argument, he 
qualified his application to the court, by saying that he really did 
not anticipate a necessity for any such reply in'that instance ; as 
he entertained a very confident hope and expectation, that the 
judge advocate, when he should have deliberately considered the 
question, would candidly admit the force of the objections, instead 
of attempting to answer them ; and would abandon the charge and 
specifications, as untenable. 

Why such an appeal to the candor of an opponent, should be. 
abhorrent to the principles, upon which this prosecution is con- 
ducted, concerns only him or them to whom the conduct of it 
is entrusted. I ask no favors, no concessions : nothing, in 
short, but the strictest debt of justice, cast up by the hardest 
reckoning: nor have I ever desired to wrest it from any with 
holder, by other than the moral force of law and justice. As to 
the menace, so strangely surmised, it is said to be inferred from 
some expression in the written argument oH my counsel. What- 
ever be the exceptionable passage in that document, it now stands 
recorded, for the condemnation or acquittal of its author: and 
dispenses me from any explanation, further than that I have look- 
ed, in vain, for the passage, from which any mind, not afflicted 
with an extreme susceptibility of offence, could have inferred 
a menace. Kvery well wisher, to the credit and success of this 
prosecution, must hope, that its ciiaractcr for nerve and determi- 
nation, should rest upon some less equivocal evidence, than the 
power to withstand the instances of this shadowy phantom of a 
menace. As vet, certainly, no infirmity of purpose, in the course 
of the prosecution, has given ground for any doubt, either of the 
active courage or the passive fortitude, by which it is upheld ; and 
I shall be the last to undervalue the efficacy of the tremendous 
ordeal, to which those high qualities seem to have been volunta- 
rily destined, by the manner in which they are exerted upon thi» 
n'-rasion. 



33* 

3. I am also reproached with having taken refuge under nice 
cavils of law and grammar; with having taken advantage of verbal 
criticisms, and legal technicalities, in order to escape the legitimate 
consequences of the charge; and with having manifested more 
dread of punishment, than sensibility to character; as if I were 
willing to go forth, acquitted by the judgment of the law, but con- 
demned by the moral sense of mankind : unpunished in person 
but tarnished in fame. To little purpose, indeed, have I so lone 
lived and acted in the public eye, if there exist a man who could, 
in his heart, entertain the suspicion that I could incur any more 
irrievous punishment, in this life, than a degraded name, or could 
aspire to any higher reward than a pure conscience and a spotless 
reputation. But if it were otherwise, and it were true that I could 
have been reproached with a design to escape investigation, by 
resting upon any legal advantage, it is without precedent, I be- 
Icive, either in England or in this country, that the law-officer of 
the government, charged with the conduct of a public prosecution, 
should have attempted to affix a stigma upon the character of the ac* 
cused, as a substitute for legal conviction and punishment; or, if 
there be any instance, either among the crown lawyers of England, 
or tl»e law-officers of the United States, of any such gratuitous 
infliction upon the feelings of the accused, it has been held up ag 
a beacon to be reprobated and avoided, rather than as an example 
to be followed. The humane dictate of public justice, in every 
such case, is, that the law and its ministers either judicially ac- 
quit, or judicially condemn, without qualification : whsm the law 
acquitteth, its ministers presume not to condemn ; but for every 
moral offence, without the cognizance of vindictive justice, the 
party is remitted to his conscience, and to the bar of public opin- 
ion. But, in this case, my exception to the charge turned upon the 
utter absence of any imputation either oi legal or ■jnorfl/ guilt ; and 
insisted upon the vague and unintelligible phraseology of its terms; 
or, in so far as any intelligible point of accusation could be de- 
duced from it, that it hinged upon minute and frivolous fault-find- 
ings, altogether beneath tlie dignity of judicial animadversion. 
And now, that this long rod of investigation has had its full swing: 
unliinited by time, place, or circumstance, every anticipation of 
tlie frivolousness and want of gravity, in the essential matter of 
the cliaige, is more than verified in the event. 

liefore I proceed to discuss the 2d charge and its several spe- 
cifications in their order, I must beg permision to advert to some 
points in the argument «if the judge advocate, in answer to the 
exceptions taken by my counsel ; which are left in a state, not a 
little perplexing to me. 

[Note. Ilcreour copy of the written defence, sent in to the 
court-martial, ends; and oven so far we have had no opportuni- 
ty \o compare the two copies; and cannot therefore exactly say 
wliat verbal ditferences or sli;>,ht omissions may be found in them; 
any further than to be certain that there cannot be one at all 
material to the argument, the statements or the sense of the do- 
cument. The two copies were respectively taken by diiierCnt 
5* 



34* 

clerks from an extremely rough and hasty first draught ; some 
parts of which hail been found somewhat defective in the con- 
nection of the sentences, and were corrected in the copies: and. 
hence possibly some very slight and immaterial variations may 
have arisen. 'As to the residue of the defence, it never had been 
written out till so done for the court-martial ; and then it was 
principally written by a cleric by rficfa^jof? from voluminous notes 
with here and there some passages written out : the whole de- 
fence, as is well known, having been delivered orally from such 
notes, with occasional passages of written composition. The de- 
fence at large, as orally delivered, went copiously and in much 
detail, into the argument and authorities on the various points 
of law, with a minute analysis of the evidence. But v.ben writ- 
ten out for the court-martial it was very much condensed ; i*^ 
being extremely difficult to make the same copious detail 
intelligible in a written composition, as in an oral argument : and 
the court having been possessed, by the latter, of these details, 
made it unnecessary to do any thing more than give a concis ^ 
summary which would serve to recal and methodise liie detail- 
And we have concluded, in making up this report, to pursue near- 
ly the same course; but giving the analysis '^that is a methodical 
s'tateraenty of tlie evidence and the points to which it applies, i:^ 
the preliminary statement of the case ; and also abstracting fro! 
the defence the argument upon the technical points of law, con- 
nected with the preliminary exceptions of the accused ; with a 
view to place it in the proper order of the discussion, immediate 
ly after the judge advocate's argument, to which it was intended 
as a reply. From the original notes of the defence, which ha-, c 
been preserved, aided by our own recollection and that ot i!;e 
counsel, we shall be able to present a full and accurate report o! 
the statements and arguments contained in the original defence • 
adhering as nearly as possible, or as necessary, to the mctiiod 
manner and style of the original. In the following part of tlu 
defence we shall introduce only such passages commenting on 
the matter of the preliminary exceptions as serve to iilustra'f 
the motives and general principles which had induced comim- 
dore Porter to adhere to them, and to enter into an elabora" : 
vindication of them in his defence.l 

After arguing the technical question on the proper mode a:.' 
time of taking advantage of tlie matter of these exception? 
whether as a motion to dismiss the charge, in arrest of judgmer " 
or by way of deniuvrei', the argument or, l.hat point was conclu-i 
ed by remarks, in substance as follows: 

Hence it plainly appears, that ademnrrer is a plea wholly un- 
known to the practice of courts-martial: and that a motion i- 
arrest of judgment would be absurd and impossible. But tli 
right to except, in some form, to the legal sufficiency of the clnrsf 
being admitted, it necessarily follov.s that the questions of lav.-, 
thence arising, must be discussed before proceeding to trv tiu 
issue of fact; or reserved. unvKir protest, to be considered :• 
some subsequent stage of the trial. This surelv is the only pra^: 
ticabie or rational course. 



35* 

I have been the more particular upon this technical point, be- 
cause 1 cannot foresee the consequence to which the doctrin*, 
conteiHlfd lor by the judge advocate, may be pushed to my pre- 
judice: and the talents and learning, manifest in his argument, 
snake it unsafe to trus>t too confidently to the apparent inconclu- 
siveness of liis reasoning; witliout taking some pains to demon- 
strate its fallacy. Had it been true that I could not except to 
the late, without admitting the/aci,it might also have been con- 
cluded that 1 could not plead to the fact, without admitting the 
law. In that case 1 niij^ht have laid myself open to conviction. 
uoon mere proof of the' nuked fact, tUv^t I had written certain 
letters, or published certain proceedings, without any considera- 
liori whatever, of tl".e/^.;a/ i'ff'ect or moral character of such acts. 
•jlie jiul^-e advocate sec.os to ado.it that, at some stage or other 
of the tnal. I may have the advantage of exception to the legal 
sufficiency of the charge; but at the peril of being held to a 
conclusive adiniision ul the fad: and, us I know not how tt^e 
matter of sucii exception may be any more regularly taken up, 
or saftily or effectually urged, when mixed up with matters ot 
fact, th:in when separately considered, I have thought it more 
s^de and eNpedieni to maintain the original ground ol exceptmn. 
fifler cuncliuling tiie argument on the nature and extent ot 
llie court's jurisdiction, particularly in reference to the legisla- 
[ice facidtv ascribed to it; and its unlimited cognizance as acourt 
of honor, remarks lo tiie following eiTect were made:] 

But it has been asked bv mv counsel, and I ask, again, what 
is tliere in ihe ciunge, or 'in any one of the specifications, that 
imputes, cither directly or by inference, any act within the ju- 
risdiction of a cinirt of /^o.voj-; or uhich may not and ought not 
to be tiie subject of special and positive enactment, it it be 
thou-ht that sound policy and the good of the service require 
thatlhev should be brou-'ht under fiie judicial cognizance of a 
court-martial? Tiiis quesuon was put in reference to the terms 
of the accusation. 1 now put it in reference to the proofs: and 
challenge the severest test for every word and deed which the 
niinute^industry of t!ie piosccutiim, stimulated by provocations 
real or supposed, has been able to call up against me. What- 
ever errors or inadvertences, or indiscretions it may please them 
lo impute to me. let any one word or dtei\ be pointed out, as ap- 
proaching, in the remotest degree, to the character ol scandalous 
conduct; or as, in any other sense, soliciting the animadversion ol a 
court (dhonor. I uuvlerstaiid this legislative power, over the subject 
(,f military crimes and punishments, to be claimed for this court, 
..at only in its imputed capacity as a court of honor, but, in right 
of a "oneral inrisdictiun, eKtending to every sort of transgression 
vl idi, according to sound and discreet views of policy and ex- 
n'rdiency, ought to be repressed, as tending immediately or re- 
I'atelv. to the relaxation of discipline ; and which the good of 
-.no seVvice reciuire to be punished as military offences. 1 shall 
not stop to iliiate upon the nature or consequences of a d«cU}ne, 
:rabh.lr,ent to tl^^lirst principles of ,ivil ^"^ -'l'^';^ ^ ^^ 
these topics have been amply treated, by my counsel, m reference 
lo wilitiirii, as distinguished Iromcuvf Ide. 



36* 



(][u the course of digcussmg the prescribed forms and substan- 
tial requisites of a valid accusation, as ccwnpared with the terms 
of the present, it was remarked in substance as follows:"! 

The question on the legal sufficiency of this charg"e and its 
specifications in reference to the prescribed forms and requisites 
of military accusations, was supposed to have been settled by a 
concurrence of so many and such pointed authorities, all coincid- 
ing with the plainest dictates of justice, and with the mo^t indis- 
pensable safe-guards of individual right and security, as to leave 
little or nothing to be said on the subject. There seemed to be 
!!!p r S''T-' ^'i'>«': ''I the general principles propounded, or in 
rifJh-^ "'^'^^ *^ **^* P''n""t '^'^' '«'• ^"^ strictures up;n the 
mlfn, f "' ^«"^^q"«»fe of Pennitting an evasion of jusfice. bv 
means of nice and technical objections to form, or of cantious 
verbal criticism. It had been thought to be as obCious to the phi 
losophical, as to the professional and practical observer, upon the 
principles of a regular and discreet jurisprudence, tliat it was 
tar more just and safe to compel the ministers of the law. to care 
and precision in the forms of procedure; than to set them loose 
from every wholesome restraint. The necessity and the value 
ot these land-marks to hun.an rights, are enforced, no less, bv 
nI?J''K!?l. ''"'"■ "I' judicature in miUtar,, lha„ in civil tribu- 

SSS milatcd, by the closest analogy. One of the nmst celebrated 
and useful of the authors, who have treated of the law a.ul prac- 
tice of courts-martial, has not tailed to insist upon the compa- 
rative mischiefs arising from a disregard on the one hand, or a 
strict adherence on the other, to established forms; and to (ie- 
monstrate tl>e wide spread and incalculable evils resulting f,<M., 
the otlTerTn ^^^^ P^''^'"' ^''^ occasional inconveniences from 

These exceptions were, in the first instance, uroe<l on mv nart 
under a firm conviction that they were unswerable ; and huvino- 
embarked m them, their importance required Uiat they should 
be gustamed. I have felt, however, no other solicitude,- as hey 
relate to my own particular case, but to beware of beinir en- 
trappsd, by vague and ambiguous phrases, into such a dilemma 
as that the court should feel itself compelled to find the fact 
against me. of having written or published what I never denied- 
oiofanj, other frivolous matter ^in the specifications ; wtl of 
the necessity of imputing to it any specific degree of e^al and 
moral impropriety. ® » 

[After a critical examination of the terms of the char-e seni- 
rate and apart from the specifications, the first of these %^^.\lt 
cussed to the effect following:] ^* ''"■ 

First Specification.— If the strictures upon the terms ariri 

Oj 2 McArthur, p. 1 1 



37* 

gubonliriitfe f.onJnvf,'^ predicated of a moral agent, is equivalent 
U) iiiSHbordinatiun i and that this last denotes some definite of- 
fence in snch agent, it must still remain an enigma, what "in- 
subordinate character^^ means when predicated of his letters. 
The moral agent may commit a breach of subordination by writ- 
ing a letter, when forbidden, or not writing when commanded : 
but what positive quality of subordination or insubordination may 
inhere in the letter itself, is the mystery. Besides, to charge 
either a moral agent, or a letter on the score of general character, 
IS a novelty : — and far more so to specify such character as the 
particular /«c/, circumstance and manner of the offence. The 
obnoxious acts and motives of the one, or tenor of the other can 
alone satisfy any reasonable idea of a spfcijication. 

The " i«.s/<ior(/j)?.a^^ character" chatge<l upon these letters be- 
ing altogether unintelligible and absurd, their " disrespectfiildvA- 
racter" (\i' at all more signilicantj is too vague and uncertain 
for any legal consequence. What sliould constitute disrespect 
in any eommunkation oral or written, is in a great measure ar- 
bitrary ; and may depend upon- minute observances of etiquette 
wholly beneath the gravity of judicial notice. 

Disrespect, in any form of words written or oral, is not recog- 
nized as a species of otience in the navat as it is in the militari/ 
articles of war. In the latter it is defined and limited by a spe*- 
ciiic enumeration of the personages to be protected against it; 
and IVom that enumeration the .Secretary of War is excluded; 
and there can be no possible reason why the feelings of the one 
Secretary should be held any more sacred and inviolable than 
the other* still less that the naval articles should have interpo- 
lated in them a new and fanciful sperics of oH'ence, merely f6r 
the snke id givin>>; to the one of ihe-e ofiicers pre-eminant privi- 
lege>: over the other. 'I'he naval articles punish contempt to a 
superior ollicer, while in the exercise of the duties of his oflice; 
no species (d' disrespect shoit of contempt, so manifested, could 
be punished under these articles.— Contempt so manifested im- 
plies something more than mere uurds : it inqdies either acts or 
words attended by the practical consequence of insulting ajid 
impeding a superior «)fticer in the very act of discharging his 
duty:, it stands next in degree to mntinoufi words, if not to ac- 
tual mutiny. 

Hut grant that "letters of an insubordinate and disrespectful 
character" are equivalent to "• contempt to a superior officer," &c. 
within the uuaning (d" the naval articles ; still the Secretary of 
the Navy, if he be the person to whom the disrespect was offer- 
ed (a matter to the last degree equivocal and uncertain on the 
face ui the sj)ecificati<tn^ answers not to the description of su- 
perior officer contemplated by the Articles of war; which evi- 
dently refer to the gradations and relations of mere military or 
naval rank, 'i'he Secretary of the Navy is exclusively a civil 
ofiicgr without military or naval tank, or other connection with it, 
than as the organ of communication between the executive and 
the officers of the Navv. 



38^^ 

t3ut, after a!!, wliat is there disreapcdfnl (o anybody in these 
letters? They complain of real or su|»|>()sed grievances. TItey 
freely renK)iistrate, it is true ; ami when officers of the army «'i 
navy' may not do that with impunity, they must be abject iiuUet! 
if not debased. Tlie j»i/ifar^ articles of war expressly autho- 
ri/.e the ai)peal of the ineajiesl soldier, and sothiough ail the gra- 
dations of military rank, v/heii he thinks himself wroiigi'd. Then 
uny orticer or soldier of the army may compiain of ivrons; frum 
his immediate superior, without oOente : — and what shall restrain 
an ofiicer of the navy fiom complaining and remonstrating 
against alleged injusUce? — The question is not now presented 
to tiiis court, vvhether [ were well grounded in my coniplaint ; but 
whether it were urged in indecent or abusive language. 

The examples of frfee and of uncensured complaint and lemon 
strance, from military men, to or against iheir superiors, art; 
frequent in the services of tliis country and of Europe. 

1 have already remaiked (hut I am not called u[)iin to explain 
or justify the tor.e of complaint indicated by t!ie correspondence 
now produced ; but I should be at no loss to specify such rea 
sons as, upon the coolest reiiection, I still think well fountled 
The manner of my recal so incommensurate, as 1 then knew 
and still know, with the nicrits of my conduct ; which if it had 
been as well understood then, as it must be nov,', ( do verily be- 
lieve would have received applause instead of censure: the ini - 
quality between the treatment I received, and that exteuded to 
others under like circumstances : — 'the continuing to hold ine up 
as an and)iguou3 object of denunciation and calumny, or of in- 
definite suspicion, without investigation, for so long a time after 
1 had tendered myself prepared for the investigation to ui;ich f 
had been cited :™were allcircumstances that bore hard upon my 
thoughts. — The magnanimous and triumphant support given to 
General Jackson against a heavy and menacing cloud oidiscon- 
tjfMit ; — the delicate treatment of Captain Cassin ('as explained 
in tlie order from the Navy Department to me of the 9ih of 
April, 1823J v.hohad the option \o come home and explain his 
conduct, or to ttausniit a v/ritten explanation against grievous 
cnniplaints ('severe and unjust as they werej of the ."Spanish min- 
ister; — altogether presented so strong a ctmtrast to the manner 
and ciicumstances of my rocal! as cfuivinced me that 1 had, in 
some way, forfeited the favor of (lie adujinistratioo. Nor did the 
administration appciir so instantly and spunianeously struck vvitn 
the enormity of my transgression at Foxardo, as to account for 
my severe treatment. For my ofncial report of the transaction 
lay unnoticed in the department, for more than three weeks after 
it had been received; and my letter of recal bears date on the 
very (\n\ that the iuqiiivy concerning thfe atuir was ntoved in con- 
gress, it was my vii^ifortnne and not my fault if any circum- 
stances made it impolitic, or in any imuuier inexpedient or unpleas 
ant for the administration to staiid the brunt of another congress- 
ional inquiry : or if from my want of favor, or of oiHcial or perso- 
nal io.portance and innueiue, tliere were no adequate motive to 
biing forwai J, on their responsibility, the juslitication which I 



could 90 easily have supplied. 'Tis true tlie Secretary's letter 
to me ('April 20, 1825) seems willing to ease oil' the weight of the 
blow, l)y mixing up oilier causes for my recal. I had indeed, in- 
timated a conditional w isl> to be relieved from the co^nmand : but 
1 could never have inferred, from my letter of recal, that it was 
in any degree cause<l by such intimation. Besides, if that recal 
had proceeded, at all, from a disposition to gratify my particular 
wishes, why was it not so announced.'' — Why was it promulgated 
as resulting solely from the necessity under which I was laid to 
justify my conduct? — Why was the matter left for four months 
in equivocal suspension intinitely more penal than express disap- 
probation, or determinate accusation ? No reason has been 
assigned, or can be fairly conjectured, even to this day, for hav- 
ing so long postponed my repeated and pressing instances for a 
speedy and cftectual investigation. 

I take this occasion to say, that I should despise myself if I 
vcre capable of insult or rudeness to gentlemen, to whom T stood 
in my then or present relation to the President and to the Secre- 
tary of the Navy: — I should hold it as unmanly, as to stand 
mute and awe-strucU, when I conceived myself justly entitled 
to complain. If any passage of my letters could reasonably 
have borne such a constructi<m., I should have been grieved ; and 
liave instantaneously disavowed the inference. 

On the other hand, I am not sensible of any impropriety in the 
matter or the manner of my letters, for which I can be censured 
by a court-martial, without exacting from the officers of the navy 
the basest servility : without condemning them to a pusillani- 
mous silence under the strongest sense of injury, or to cringe at 
the doors of departments and bureaus for justice. 

I have discussed thus generally the merits of these letters, be- 
cause the generality arid vagueness of the accusation enabled me 
not to be more particular. The letters, as simply referred to by 
their dates in the specification, have been produced and read, 
without the slightest intimation of the exceptionable passages; 
or of the person against whose dignity or feelings tliey trans- 
•▼ressed j or wherein the oft'ensiveness of them consisted. I must 
therefore leave it for others to discover or conjecture which of 
them or what parts of them, an officer of the navy, who ho;<estly 
th.inks himself aggrieved, dare not address to them who owe the 
duty and possess the means to redress him. 

Second Specification-. — This charges the naked fact Cwith 
out one circumstance of aggravation, or the remotest sugg-istion 
of any ill intent or mischievous consequence^ of having published^ 
H pamphlet purportiug to contain the proceedings of the court of 
inquiry, before the Executive had authorized the publication of 
surh proceedings. f«j The lawfulness of this ac;, as stated on 
the face of the specification, was farther insisted oi ; but for the 
reasons already stated, the argument on that point is iiore omitted. 
The evidence, it was said, had supplied no new illustration. 
The publication was admitted. The court had not given, nor was 

("aj Ante. p. 7, 



40^^ 

Cunipetcnt to ^^ueaiiy opinion on tlie subject matter ot iiuiuiry ; 
not havirij; been so tequired. No injiuictiori of sectec)', cxpiosa 
or implied, was iiuposed on tbe proceedings of the court; but 
they were publicly conducted, and, as it were, the |)roperty of 
the public. Tiie business of the inquiry had been completely 
executed for more than three weeks; and the court had been dis- 
solved. 

Third SpEciFiOAnoN. — This was also said to have advanced 
nothin;; but a simple charj^e, without the sli'^htest agt^ravation 
from intents or consequences, of havin<; ^iven an incorrect atute- 
vtent lA' i\u' proreediiifis uf the com t of iiKjuiry. U[)on this the 
defence went into an <'lubi)rate an<l minute examination and com- 
parison of the instances of inconcitness so charged, and set 
forth in the detaileil specification and list of t)ie same laid before 
the court by the jud;;e advot ate. l^pcm the plan above stated, ot 
eollatinj; the nunc complex parts of the evidence in the sl.nte- 
mciit of the case, and arranging and illiistratin;; its application 
methodically to the various points to which it was adduced, we 
shall here present a meie summary of the statements, illustra- 
tion*^ and rcasotjings before the court, iu .ex|)laii)ing (his specifi- 
cation. 

The nutncrou,^ and complicated list of particulars cited as 
instances of itic(jrrfciii('ss in the piiblished statement of the pro- 
ceedings is res(»lved into two chtsses. I. 'I'he total omission or 
suppression of documents, il. Cleiical errors in the transofip- 
tjon of the recind, or tyf»ographical errors in the printin<^ of it. 

1. The entire record, as exhibited before the. court, consisted 
of the minutes or- jouirial of the pi-oceedin{;s; compreliending 
the examinations of witnesses, anil winding; up with the final re- 
port of tlie court ; to which are annexed foui teen exhibits distin- 
guished by numbers fmm I to 7; and by letters from A to (j ; 
all of which except fivo arc admitted to have accompanied the 
statement of the |)rocee<lin;5s as publislied in the pamplilet. The 
list td' particulars, specifying the inslanr.es of incorrectness, charg- 
es the suppression or omission of these two documents and of the 
report of the court <d iinjuii-y: n»akin;i three instances (d" sup- 
pression in all : which are successively accoiintc«l lor as follovvs. 

1st. 'J'hc exhibit No. (i, [being the original letter- of insi ruc- 
tions of the Ist of i'V'bruary, IB'l.T, from the Secretar-y of the 
Navy, upon (he. tm|)uted viidation of which tiie first char-ge rnuv 
in a course of trial is founded,] which is nat suppressed or- onrit- 
ted ; but actually published in the pamphlet, with il • omissiorr ordy 
of some concluding paragraphs, ontiieiy for eigii to the (hen pend- 
ing f<ubject of iiii|uiry. A comparison between the printed copy, 
and the original now produced is conliderrtly appealed (o as de- 
monstrating that the passages so omitted had no sort of connec- 
tion wilh the subject nrat(er of (he inquiry; and that the inser- 
tion or omiHsion of such passages was a matter of utter imliffe- 
rence. It was given as an extract; and therefore rro one could be 
deceived by taking it for the eirlire letter. The same reasons 
dei»ons(r-a(e the absence of arry improper motive or design in (he 
suppi-essionof the concluding passages: though the char-ge hing 



41 > 



es nof uprm il,e o,rH,s.on ot tl.ose pasaages hut of tU xvhole let- 
ter, b., ar from any bi.cI. motive or desitrr, being i,..pute(l 
or .mpufable the Jetter was expressly cit.-.i ^. my^ .lefS ; 
La : f'"'" '' "' -'"taming a full an.J conclusive justi- 
uau.n ,, my procHM-.lmg at Koxar<lo ; I reasoned then as I 
lono\v, that my instructions not only juntifwsl that operation 
»..t con.n.an,Ie.r.t as a rluty. It woulcl have h.-en a' porten- 
tous Hustake mdced to the disparagen.ent of n.y own feason- 
nz.. ami beatirij; (n.m under me one-half of the (rr.,und on 

docSmentI"' '' ^" ''"'''^'^ '"^''"'' '^ ^ ''^'^ «uppr.H«.d that 
2il. The cxhihil a is also charged »« hcing supnre8^«l. This 
• s expl.iined to I,.- a letter ^May f. 1825; from the S.- .^tary ol 
'lie Navy to the ju.l;;^. advocate, while the court of inqiii.y Waa 
in sesSM.ri, and during fj.c progress of the inquiry, int>. the Fox- 
■■n<U> a lair. U ,t. ucre true- that it haj heen not only omitted, but 
entirely ovoriocda-d and pasMul by in silence, what possible evi- 
dence could It have al ord.d of suppression, in any ba.l seoae of 
the tennr Ihat must be dct.-rmined by the nature of the docu- 
rnent, iti connection with the subject," and the possibility of its 
havuiir supplied any inducement of interest, or other bad motive 
Jor the supprcbMon. The mere desi<rnuli<m of the document, as 
a letter horn the Secretary of the Navy to the jud^e a.lvocate. 
shows that, ,n the nature of things, it could not have contained 
any evHience or other matter which it was my interest to have 
conteakd. Look at the h.tter itself; and what is it but a for- 
nialcommumcatn.n merely aBnouncinjt that cectain documents, 
tlie.xin mentioned, (some of them as received from me. and some 
»n>mlhe IJi-p.artment of State, relative to the subject matter of 
iiHiuirr,) arc transmitted for the consideration of the court, in 
a slatoment of the proceedings, };iven merely for t^.e purpose of 
exhibiting the real evnience and the substantial matter and re- 
sult of the invcstigaiion, nothing would have been more allowa- 
ble than to have given an extract of the -iib.-.faiilial parts alone: 
and to have omitted ih'- merely formal appendages of the record. 
I his, doubtless, would have been done, on the responsibility of 
the party ; and, d any thing had been omitted which he could 
have had any possible interest to suppres<;, would have laid him 
open to suspicion and censure. Whatever interest I had in this 
.omitted letter led to the publication, not to the suppression of it: 
becau-e It supplied a conclusive argument for the H^/mmion of 
the documents which the court of impjiry had iwjuctcd ; and 
which are nkvertheless published in the pamphlet as a part of my 
justificati'.ii ; wiih a note vonh-itln^ the propriety of the decision 
by which theyhad been rejected. But what is to be said of this 
charge, now iTiat il appears that I was so jjunctilious t^nd so sedu- 
lous to make loy copy of li.e proceedings minutely and literally 
correct, as to have taken considerable trouble to obtain the tew 
unimiiorfant parts of the proceedings that were wanting to make 
my copy complete; and tjiis veiy letter among the restfin \\W\i.\\ 
\ faded for ihe reasons stated in the judge advocate's letter of 
May 'M, l;v^:. :■ t;,h ..vi.i-, .... ; ",..,. r. .• ,..,^^^,,.,:^ ,^ 



42* 

produce amaz,ement at finding myself charged with tlie omission 
of this letter : since the fact stands recorded on the face of the 
very publication, wherein it is said to bave been suppressed, 
that 'Such a letter was produced to the court, but " not in my 
possession :" and in my letter to the Secretary of the Navy of 
June 14, ('among the letters now exhibited as " insubordinate and 
disrespectful,"^ written more than a week before my arrest and 
before the exhibition of the charges, and in which conjectures 
are made as to what parts of my publication were charged with 
being "deficient and inaccurate," the omission of this identical 
letter is mentioned, and accounted for as having been " refused 
to me by the judge advocate." At the time my clerk took a copy 
of the minutes of proceedings, it appears that the mark, by which 
this document was to be distinguished, was left blank ; and was 
afterwards filled up in the record with the letter G. In my copy 
of the minutes (page 31 of the pamphlet) the note, just men- 
tioned, was affixed to the reference to this document, the nmrk of 
which is so left blank, importing that it is "not in my posses- 
sion," for the express purpose of accounting for the omission. 
Thus is ih\s particular of that anomaly, a general specification, 
just as uncertain in respect of the gist and intent of the com- 
plaint, as the original charge and specification : fo»: 1 hold it im- 
possible, under such circumstances, that a charge of suppression, 
in any criminal sertse of the term, can have been gravely intend- 
ed;— and if not that, what is it? 

3d. The next and last item in this formidable list of S7tp 
pressions, is that of the Report of the court of inquiry: and as 
to that, every {act and every reas"on, by which the omission of 
l^e exhibit G is accounted for, applies with identically the same 
force and effect. 1. As to the matprialitiioHhe paper; and any pos- 
sible interest or sinister motive which I could have had to 
suppress it. This document gives, as the result of the inquiry, 
a dry and unvarnislied summary or recapitulation of the naked 
facts proved in the case : — it names or refers to all the evidence 
seriatim; and professes to give a methodical and literal state- 
ment of it, without color or comment ol any kind. The court 
was not required, by the precept, to give an opinio!) ; and, of 
course, the slightest iiitiniation of such is carefully avoided. 
When, thetefore, the evidence itself was published, every thing, 
-of which the report of t'.ie court could or ought to have informed 
the public, was given. If, on the contrary, the report had stated 
more or less than the evidence, it ini<>ht be presumed that I should 
rather have seized upon it as a distinct ground of exception and 
complaint; rather tlian l;ave concealed it: as 1 had unfortu- 
nately dlQcrcd with tlie court, so materially, about certain of 
their proceeding's in the conduct of the inquiry ; the propriety of 
wliich had not only been contested before the couit, but was still 
controverted it; the pam^ihlet. 2. As to the actual suppression 
of the docunients; — the cliasni, which should have been tilled up 
with it, is distinctly indicated in the publihhed copy of the pro 
ceediiigs ; uhcre the existence of the report is recognized and its 
omission accounted for ; as follows : 
(" The report here comes in of which I have' no knowloOge.", 



43* 

The remark is repeated in the same letter of June 14, wKerte 
the omission o( the exhibit G is mentioned and accounted for; 
and where I respectfully invite the publication of both. 

&o tar then I stand charged with one omission which is di- 
rectly contradicted on the face of the document itself: and, not 
a whit more unreasonably, with two others which are admitted 
and explained on the face of the same document ; which is sup- 
posed to have been falsified by such omissions. 

11. The specification of simple incorrectness in tny statement 
or the proceedings, appeared to be frivolous enough on the face 
ot the specification itself; but it turns out to be still more so ia 
the proof; for if every minute variance, between the printed re- 
port and the record, could be justly charged as the mistake of 
tiie former, they were wholly immaterial ; and it was too favora- 
ble a representation of them to say that thev were merely ver- 
bal; for they descended into the minutiee of punctuation and or- 
thography, and even of empjiasis, if such may be understood by 
the term, italicising. The only circumstances that could have 
given any legal or m.oral effect to the specification, was^o have 
charged substantial errors, materially varying the sense; and to 
have charged th.em as proceeding from some sinister motive. 
Ihese defects of averment, so far from being supplied, are made 
but the more manifest by the evidence. The pains I took to have 
the record accurately transcribed, by competent and ejtperi- 
enced clerks employed for the purpose; — and afterwards to have 
it correctly printed, are fully proved. This proof alone was suf- 
ficient to repel any charge against ine for clerical misprisions or 
typographical errors committed in tliu course of transcribing or 
printing; the frequent and innocent recurrence of which, and the 
difficulty to avoid them are notorious. But the proof does not 
• stop here ; it goes the length of establishing the fact that these 
variances, casual, immaterial and innocent asthey'may be, are 
not chargeable to the account of my clerks; but thatthe great mass 
of them Cin what exact proportion to the whole is not absolutely 
certain^ was produced by alterations made in the origiyi at after 
my copy had been taken from it; and without notice to me of 
such alterations. This fact, I consider as directly proved in nu 
nierous instances, and by the clearest evidence; and very satisfacto- 
rily to be inferred in others, from a comparison between the copv 
and the original. ('«) The direct proof is substantially this : that 
numerous iNferZ'/n^'Hftojis and additions, in a different hand wri 
ting (^that of the judge advocate^ from the body of the original, 
are all omitted, without exception, from the copy : while words 
erased in the body of the oi iginal, but so as to be barely legible 
under the erasure, are all found in the copy. In all these passa- 
ges, my copy reads to the greatest exactness with the fair trans- 
cript of the original as it stood before it had been so altered : re- 
taining all the words eratsed; and omitting all interlined and 

fa J The instances were particularly pointed out, with reference to the 
proof's: but liere omitted with a view to be introduced into the statem<;nt 
of tlie case. 



44^'- 



added. Then there are two witnesses, besules the evidetdia ru, 
to establish the original correctness of my copy, and tlie subse- 
quent alterations of the original : to wit : the clerk, Mr. Harrison, 
who was employed by the judge advocate to transcribe iromhis 
rough minutes the fair record which was sii>;4ied and sent to the 
Department, with these interlineations, additions and erasures 
on its face ; and my clerk, whose copy varies in all these partic- 
ulars, from the original as it now stands, and agrees with it, as 
it stood b«foiP. all concur in proving that the original, as it tor- 
merly stood, was concoUy copied, and that (he variances now ap- 
parent between it and the copy, A^'^.e produced, not by clerical 
errors in the latter, but by subsequent departures of the original 
from itself. This proof is corroborated, if proof so plain can be 
corroborated, in these very instances, by the nature of the exis- 
ting differences between the Original and the copy: the interline- 
ations and additions being so perfectly plain in the autograph, 
So distinctly marked and so conspicuous : and in several instan- 
ces, making so remarkable and palpable a difference in the phra- 
seology ; more particularly remarkable in a note of several lines, 
added to the original at the bottom of page 41, ("and in the hand- 
writing of the judge advocate; as make it, in the highest degree, 
improbable that any clerk should, even in the first instance, have 
committed such palpable blunders ; but far more so that they 
should have escaped the very careful revision and comparison 
proved by Mr. Simpson and lieut. Ritchie to have been made be- 
tween the original and the copy. This conclusion from the evi- 
dentia ret is carried still beyond the particular instances, where- 
in these interlineations. add"itions and erasures appear in the ori- 
ginal. For all the other variances fwlth one or two very trivial 
exceptions; are in like manner marked by such palpable and 
conspicuous fthough, to any essential purpose, immaterial; difter- , 
cnces in the phraseology of the two texts, as leave scarce a pos- 
sibility that such differences should have arisen from mere cleri- 
cal misprision ; far less that they should have been overlooked in 
the subsequent revisioji. One 'other circumstance, connected 
with this subject, is wortiiy of observation. The minute of the 
last day's proceedings ('Monday, May 9; is in the hand-writing 
of thejudge advocate himself; and not, like the preceding part of 
the record, in that of his clerk : in that a whole line necessary 
to make sense of the sentence, but not otherwise material, is 
omitted : but when he came afterwards to review the minute, he 
was so struck with this chasm in the sense, that he has added, in 
j)encil, the words required to fill it up: merely to indi- 
cate what it sliould be; and not as an official correction of the 
original: for this interlineation in pencil h altogether omitted 
in the office copy sent from the Department, for the use of this 
court. Upon tl'e whole, a careful and critical examination of 
these differences makes it evident that they could not have arisen 
from the mistake of the copyer; but IVom a revision and recast 
of the original, after the copy had been given out. These altera- 
tions of the original arc not stated ar;d insisted on, as complain- 
ing of them : because I piesurae that the judge advocate made 



45^^ 



tiiemat a time and under circiiinstances which warranted and jus- 
tified the act: but 1 do complain and tlie moral sense of all the 
world must uphold me iu the complaint, that the differences be- 
tween the two texts, produced by these same alterations, should 
have been made the ground-work of a criminal charge. The only 
exception, of any consequence, to this mode of accounting for the 
differences noted in the judge advocate's list, is the only one 
among them which is of the least importance: and that is the 
entry, on the first day's proceedings, of my exception to the for- 
mation of the court/ The terms, in which this exception had 
been entered in the minutes of the first clay, were objected to 
by me; and 1 offered to the court a written minute of tlie excep- 
tion, as 1 had actually intended and made it : which the court re- 
ceived and ordered to be recorded in my own terms. Clearly- 
understanding this to be an admitted amendment of the original 
entry, I amended it accordingly, in its proper place, in my copy : 
^vhereas the judge advocate left the original entry as it was; 
though he made a minute, in lyiother place, of the amended en- 
try as proposed by me and accepted by the court. So far, I 
contend, that my copy is the more correct history of the transac- 
tion. 

There remains only one of these special instances of incorrect- 
ness to be remarked upon : an<l that requires a separate notice, 
only because it is unique in its kind ; and comes not within either 
of the two preceding classes : it consists of the transposition of 
documents; which, being explained to mean simply an inversion 
of the order, in which they had originally been^ilaced and number- 
ed, requires no defence, if I can acquit myself ol the imputed 
mistakes of syntax, orlliosraphy, punctuation, emphasis, &c. 

Fourth SpiiciFicATioK. — [After a particular reply in support 
of the legal exception to this specification, the defence proceeded, 
in substance as follows :'} . r i i 

What is not warranted by fact, or what disrespectful to the 
Secretary of the Navy or to the court of inquiry, in any of the 
remarks," statements, or insinuations here complained of, has nev- 
er, to this day, been explained. That complaints are made to 
the Secretary of the Navv, of acts to which he was a party or ot 
which he was the organ is true : it is equally true that certain 
proceedings of the court of inquiry arc remarked upon and free- 
ly criticised, but in terms wholly unexceptionable. 

1 have not assailed their motives nor their understandings ; but 
have endeavoured to demonstrate certain errors ot judgment, 
which bore hard, as I thought, upon my particular case. ^Vilat 
may be the standard of th.e deference due from a military or naval 
officer to a military or naval court of inquiry, 1 know "ot; but 
this I know that complaint and remonstrance in tar more bold, 
decided and censorious terms, from persons tar more delicatery 
situated towards the persons addressed ; and intercourse be- 
tween whom is guarded by far more jealous punctilious, has been 
apHlauded by the nation,' and tolerated bv them who might have 
resented and punished it, if it had been considered as transgress- 
ing the proper boundaries of eomplaint and remonstrance. 1 ai- 



•16^ 

Jude to a military olHcer and the lejii. slat lire ot his country:—- 
and 1 cite as an example the memorial of General Jackson to the 
senate; in vvhicli he censures, with some severity, the proceed- 
ings of a com-mittee of inquiry instituted by that bu(\y.(a) Yet the 
senate, after debate and full deliberation, voted the n)etnorial un- 
exceptionable and ordered it to be printed. And General Jack- 
son yet lives in the heart of the nation : an honored member (if 
the very senate which had so magnanimously brooked the free- 
dom of his remonstrance; and only second in the competition 
for tlie highest honours of the nation. 

Now let my complaints ioth« Secretary, and my remarks up- 
on the proceedings of the court of inquiiy'be cumpaVed with Gen- 
eral Jackson's memoiial ; — and it will plainly appear \n)w far 1 
kept within the allowed limits of complaint and remonstrance. 

Fifth and last Specification. — [This, it was said, indicated 
the extremely vague charge of having published in the pamphlet, 
before mentioned, and on oihei" occasions butween the 1st of Oc- 
tober, 1824, and the 15th of June, 1825, olficial communications 
to the government, &c. What documents, or what oilier occa- 
sions on which they were published, this specification was intend- 
ed to comprehend, have not, to tiiis day, been designated : thouglf* 
among the masses of docun\entary evidence introduced in the 
c6urse of the trial, sundry documents answering this description, 
but equally applicable hud necessarily to be applied to other 
specifications, were included in the general mass. After various 
remarks, more in detail, upon the legal effect of this specification, 
and the natuie of the documents conjectured to be alluded to, 
the defence proceeded, in substance, as follows :"J 

This specification, b«>lh as «tatotl ii> tt^rins and as made out in 
proof, assumes that it is a n^ilitary ott'ence punishable by a court- 
martial for an officer to make public any official comniunication 
whatever, no matter how innocent or indifferent, without first obtam- 
ing leave. Upon what authority so strange a position is assumed 
is hot explained, nor may it easily be conjectured. If secrecy 
be enjoined either expressly by the terms of the communication, 
or implicity by its nature and the injury to the public service, 
■which a disclosur.e might produce, the publication of it would he 
highly inipropei- ; and, according to circumstances, might biing 
him in the danger of the legal charge of scandalous conduct 
But as to otliclal comniunications in general, not impressed with 
this special character of secrecy, there is usually less dedicacy 
or resorve concerning tliem, than is customary with the corres- 
pondence of private gentlemen ; because the fortner are, in some 
sort, public documents; and the same n)otives of ilelicacy are 
not applicable to them. The correspondence here charged as 
published, without leave, was thought necessary to the explana- 
tion of some part of my conduct before the public; and there 
was no possibility of injury to tlie service from the publication of it. 
Having gone through all the stated charges and specifications, 
it seems I am called upon to answer some collateral matter hav- 
ing no manner of connexion vvitii the real merits of any question 

c'J Vid. ISNlle-i's Reg-, p, 279, 



e 



47* 

involved in tlie present trial; unless it be supposed to be a lpj?;i- 
tiinate mode of attack, to eke out the defects of tlie cxrstini;; 
charges and evidence, by throwing the weij^ht of an eminent. 
roan's character and opinion into the scale against me. 

But 1 have never made it my anibition to bask in the smiles of 
power ; nor to rest my hopes of preferment, either personal or 
professional, on favor ; nor, consequently, to court such favor by 
any unmanly tone of aduhstion or subserviency. I have always 
considered my life and services as dedicated to the nation and 
myself as the servant of the nation : (hough undoubtedly resp<m- 
sible directly to the goveinment, and bound not only to implicit 
obedience to all lawful commands, but to all proper deference 
and respect in my oflicial and peiHoiial intercourse: and indeed 
deriviofT beartfelt en.j>>jjnent, when such intercoui-Se gave me an 
opportunity to cultivate (he friendship of great and good men, 
whose talents and virtues had raised (hem to [Mjwer. Upon the<<fc 
])rinciplcs I feel less mortified than mii;ht have been supposed 
at the f)resent attempt to raise any prejudice against me by the 
introduction of this extraneous matter : and I think too highly 
of this court to apprehend any unfavorable ialluence from it upon 
the merits of my cause. 

I allutie to the deposition of Mr. Monroe, taken wilWout any 
legal authority, and containing within itself not a tittle ot evi- 
dence tliat can or ought to operate against me vvith any, but the 
narrow minded and the servile. In so far as it imports any dis- 
approlKition of my conduct, it is by ripping up some oUl causes of 
dissatislaction whicii ought not to have had any influence upon 
the conduct of the late atlministration in relation to the allairof 
Foxardo: and if it shall appear that they had sueh itifluence, 1 
should rather consider it as furnishing me with new ground of 
couipliiitit, instead of acrui»Hi(,itrng or aggravating any of the 
complaints, whether well or ill-founded, against me. I do infer, 
in the absAtite uf :ill explanation of the purposes for which this 
deposition is adiluced, that one of them is to take upon the late 
President all the responsibility of the various orders from the Navy 
Department, of which I had at difTerent times complained. If this 
means that 1 «huuld have complained of the President, instead 
of the Secretary of the Navy, it implies that what was disres- 
pectful to the head of the Departnient would have been quite 
decorous to the chief magistrate. 'Ihe (ruth is, that all my con» • 
plaints of the manner of my recal, were addressed to the Secre- 
tary of the Navy as the regular organ through which I comuiu 
nicated with the administiation : and whatever use.l n)ade of the 
personal pronoun in describing the source of the measures com- 
plained of, I should have been understood as speaking of t'hc 
ad i Ministration collectively. 

This deposition, by Jipj)ii>g up some old topics of dissati^fac- 
linn whi(!i had been lhou;>;ht to be long ago adjusted and forgot- 
ti;n, lias rlirown upon me tlie burthen of ex[)lanation and deleno* 
upon points foreign to the stated accusation, against which 1 ha\e. 
been put upon my defence. 

[The defence then went into detailed and minute explanations 
;>f the- ma(te^^ al'luded to in the ilcpo^itiop : — with aview to de. 



48*' 

Tnoiish'a'e From numerous documents: tst, that lie was autfio- 
nsed by his orders and by circumstances to return from the 
West-Indies, in June, 182-t: 2<l, that he had every reason ty 
concUnlo, from tiie languai^c and conduct of the administration, 
after lie had explained his authority and his motives for so return- 
ing, that tiiey were entirely satisfieil with the measure; and ac- 
quiesced ill bis remaining: 3d, that his recjuest and expectation 
to be furnished with a Ha^-ship of a larger class, before returning 
t«» the West-India station, were warranted by frequent and re- 
peated acknowledgments of the utility and necessity of the mea- 
sure ; and as frequent and repeated promises to have it executed: 
4th, that his unwillingness to go till the ship, promised him in his 
order for sailing, could be tlitca nut under his own superinten- 
dence, was justified by th'e event; as he nevoi- got the ship at all. 
The various documents adduced to these points will be found in 
tlie statement of the case. — The defence tlien concluded in sub- 
stance as follows :^ 

As to the short correspondence between Mr. Monroe and my- 
selt in March last, it was with the utmost surprise that I received 
an intimation during the present trial that it had been dep(»sifed 
in the Navy Department. Not that I mean to complain of its 
surrender to tlie purposes of the prosecution, but simply to ex- 
press my surprise that a correspondence so trivial in itself, and 
merely personal in its concern, should liave received so solemn 
a destination. Indeed the inoiiensiveness of its contents serve 
to shew how securely I might challenge investigation, since the 
most unscrupulous use of a private correspondence had produced 
nothing of which i ought to be ashamed. If there were any thing 
that 1 could now desire to have expunged, the wish was dictated 
by a feeling of pride which I think it meritorious to repress; with- 
out regretting any errors of sentimen't into which 1 may have 
l>een betrayed by any warmth or cordiality of temper. 

rNoTF. — In the foregoing sketch of the defence from the point 
where our copy fails us, the first person singular is used, for the 
L-nkc of conciseness and convenience ;~not as professing to give 
O.w precise language throughout: but fiom copious notes, and 
detache<l passages written out, connected by recollection (^throw- 
ing out the law argument on the more technical points, and the 
detailed statements and compirative analyses of the evidence, 
fi-.r liie reasons already statedj it is given as a faithful report of 
tije sum and sub:-itance of the topics treated in the original deliv- 
ery of the defence. The law-aigument, sustaining by way of 
reply the original exce|)tions, and also the metI'.odi/,ed statement 
<>! the evidence v.ill be foniu! at large in the preliminary discuss- 
ion and in the state of the case respectively, as digested from co- 
pious notes. 

Alter the delivery of the defence, the sessions of the court 
xvere held in closed doors: of course we can know nothing of 
what then passecl, but from the publication, by authority, of the 
ii.ial proceedings and sentence ; which are found in the Nation 
al Jtmrnal, National latelligencer, &c. of the 18th August 
last, as follows. — 1 



49* 



TUESDAY, August 9th. 

The Court met, pursuant to the adjournment of yesterday, 
present all the members of the Court, and the Judge Advocate. 
The room being cleared, the residue of the proceedings waa read, 

The defence not having been transmitted, the Court came to 
the following resolution : 

Resolved, by the Court, That this Court has felt and exhibited 
a disposition, during the progress of this trial, to allow every in- 
dulgence to the accused which the most cautious regurd to his 
feelings and wishes could dictate : That, with this disposition, 
delays and a course of practice have been submitted to in which 
the Court has reluctantly acquiesced : That arguments, instead 
of being prepared, when ottered to the court, in such a state as 
to be annexed to the record, have, after an ample allowance of 
time, been delivered orally, and an equal length of time after- 
waitls consumed in committing the same to writing: That, in re- 
gard to the defence, alter having waited for an unusual period of 
lime, it was, in fact, delivered to the court orally, and as a writ- 
ten document it has not been presented to the Court this third 
day after its public delivery: The court feels constrained to no- 
tice this conduct, which it cannot pass over without an expression 
of its disapprobation, and has determined that unless the paper is 
ready by tlie meeting of the Court to-morrow, the court will pro- 
ceed to judgment without it. And it is requested of the judge; 
advocate, that a copy of this foregoing resolution be transmitted 
to the accusecl this afternoon. 

At 3 o'clock the Court adjourned till 10 o'clock to-raorrj»\v 
morning. 

WEDNESDAY, ^lugust 10th. 

The Court met, pursuant to the adjournment of yesterday; 
present all the members of the Court and the Judge Advocate. 
The minutes of the proceedings of yesterday were re«d. 

The judge advocate stated, that in compliance with the wishes 
of the Court, he had left a letter directed to Captain Porter, con- 
taining a copy of the foregoing resolutions, with the counsel of 
th-e Accused yesterday, on his return from the Coavt.(a) 

The Defence not having heen transmitted, the Court procee- 
ded to deliberate upon the charges, specifications, the evidence 

fa J NoTK. Tliere must be some great misapprehension of fact in this 
matter. We state upon the aiUlioiily of (.^om. Porter and his counsel, and 
their positive assertion that they never saw or heard of the resolutions above 
mentioned before the publication of the same in the newspapers with the 
final ])roccedings of the conrt on tlie IStli of August. Mr. Jones states that, 
to his knowledge, lie \\t\d not seen, and ccrt;iinly had no communication with 
the judge advocate, either wi'itten or personal, after leaving the court, on 
Saturday the 6th of August. It is therefore presumed that it was not inten- 
ded to say that the resoUitions were delivered to the counsel in person; 
though the saying that they were It ft la'th him does import as much. What- 
soever the mode of conveyance, it certainly miscarri«*d. 



50* 

that had been submitted, and what had been alieged in behalf of 
the accused : and during the deliberation, the defence upon the 
first charge was communicated to the Court, annexed and mar- 
ked (Pj. After having carefully and maturely weighed and de- 
liberated upon the n;atter, the Court is of opinion that the speci- 
fication of the first charge is fully proved, and does adjudge the 
accused GutLxv of the first charge. 

The Court is also of opinion that the first specification of the 
second charge is proved in part : That it is fully proved so far as 
regards the letter to the President of the seventeenth day of 
April, 1825, and thfi letters to the Secretary of the Navy, of the 
30th day of January, the lath day of April, and the 14th day 
of June, 1825 — each of which the Court conceives to be of the 
character attributed to them in the said specification ; but it does 
not consider the letter of the l6th day of March as liable to the 
same censure, and, therefore, so far as regards this last mention- 
ed letter, the Court is of opinion that uiis specification is not 
firoved. The Court is also »f opinion that the second, third, 
ourth, and fifth specifications of the second charge are fully 
proved. The Court is of opinion that the second charge is fully 
proved, and does, accordingly, adjudge the accused Guilty of 
th% saite. 

In deciding upon the first charge, and the specification under 
it, the Court, however, feels itself called upon to ascribe the con- 
duct of the accused, which is deemed censurable, to an aiuvions 
dispositimi on his part to maintain the honor, and advance thlj 
interests of the nation and of the service. 

The Court also thinks proper to state, that in deciding that the 
third specification ts proved, it is of the opinion, that, so far as 
respects the inaccuracies /Joinfeti out by the Judge Advocate, in 
the paper annexed to the record, and marked No. 15, this speci- 
fication is fully proved; but the Court sees no reason to bolicve 
that the errors and inaccuracies therein indicated, were the re- 
sult of desio^w or of improper motive : That, with the ea-ception oi^ 
such errors as have been particularly noted, the publication by 
the accused of the proceedings of the Court of Inquiry, appears 
to be a correct transcript of the record. 

In forming its opinion upon t'ne fourth specification, the Cour' is 
satisfied that the same is fully proved in the following particu- 
lars. 

In the Advertisement : " By the conduct of the Court to which 
the subject was referred for investigation, I was driven from its 
presence, and prevented from making the explanations on which 
I founded my justification." 

In the reinarks, p. 24 : "I could not consent to defend myself 
before the Court against any charge whatever, until its legality 
kad beeen decided by competent authority : — until I could appear 
before it en terms of perfect equality with my accusers — until I 
could be allowed to protect myself in the way which might ap- 
pear to me most proper; without submitting my defence°t(» the 
inspection of the Judge Advocate, who had no right to decide in 
my case :• or to the control of the Court, who would ihereby 
have exercised a power not founded on law or justice; and with- 
out the risk of undeserved reproof.'' 



51* 

In p. 25 : " But it was the duty of the Court to decide wheth- 
er it was or was not competent ; the decision as to its belief on 
the subject, on oath, was all that was required by me, and the 
question could have been decided by the Court as readily and 
as well fc</(jre as it was after the instructions of the Secretary 
had been received ; that it did not decide in the^rif instance, is 
suffichent evidence that doubts then existed as to its legality." 

" Under all circumstances then, I had nothing to loose or ap- 
prehend by my withdrawal from the Court, and I certainly saved 
a ver}- useless sacrifice of my feelings, ('except in its deportment 
toward me while before it,) it could do me neither good or 
harm. A Court more powerless, and yet mure calculated to 
alarm the accused, was, perhops, uever formed." 

"The charge first to be investigated was exhibited against me 
by the Secretary of the Navy, the Secretary of the Navy selec- 
ted my judges, two of whom were junior to me. The Judge 
Advocate, who is the priimun viobile of all Military Courts, re- 
ceived his appointment from the Secretary, and is his warm 
friend and protege. Under these circumstances, it may readily 
be imaglriod, I had every thing to apprehend and nothing to hope 
for while before the Court; and to defend myself under the con- 
ditions imposed on me, would have been worse than useless." 

In i\\c. remarks in p. 31, it appears to the Court to be implied, 
that all the documents upon which the Court of Inquiry founded 
its opinion were contained in the pamphlet — which was not the 
fact. The Court also includes, as proof of this specification* 
the second paragraph of the paper marked E, in p. 40 of the 
pamphlet. 

The Court does therefore sentence and adjudge the said Cap 
tain David Porter to be suspended for the term of six months, 
from the date hereof. 

Havino" come to the aforesaid determination, and the residue 
of the Defence not having been transmitted, the Court, for the 
purpose of enabling the Judge Advocate to prepare in due form, 
and record the said findings, and it being after four o'clock, ad 
journed till eleven o'clock to-morrow morning, 

THURSDAY, August llth. 

The Court met pursuant to the adjournment of yesterday— 
present all the members of the Court, and the Judge Advocate. 
The proceedings of yesterday having been read, the Court pro- 
ceeded to sign this, the record of its proceedings, the finding and 
sentence. 

James Barron, President. 
Thomas Tingey, 



Jamks Biddle, 

C. G. RlDGELY, 

RoHT. Trail Spence, 
Jno. Downes, 
J. D. Henlk.y, 



J. D. Elliot, 

James Renshaw, 

Thos. Brown, 

Chas. C. B. Thomtsox, 

Alex. S. Wadsworth, 

Geo. W. Rodgkrs. 



Richard S. Coxe, Judge Mvocate. 



53* 
THURSDAY, JlugustMth. 

The record of the proceedings in the case of Capt. David Por- 
ter having been signed and transmitted to the Department, the 
Court, by virtue of an order for that purpose from the Secretary 
of the Navy, directed to the Presiilent, and hereunto annexed, 
and marked A, adjouroed to meet to-morrow morning at ten o'- 
clock, at the building on first street cast, and the corner of Ma- 
ryland avenue, formerly occupied by the Congress of the Uni- 
ted States. 

FRIDAY, August 12th. 

The Court met pursuant to the adjournment of yesterday — 
present, all the members or iWo Court, and the Judge Advocate. 
The Judge Adv«cate read and submitteil tu the Court a letter 
from the Secretary of the Navy, which was annexed, ami marked 
B. and the record of the proceedings, as transmitted yesterday 
to the Department, with the paper referred to, as a continuance 
of the defence of Captain Porter, 

The paper having been read : on motion of a member, the 
court determined that it will adjourn until ten o'clock to-nior- 
row, and that captain Porter be informed that the court will re- 
ceive the residue of the defence at that hour. 

The court adjourned till to-morrow at ten o'clock. 

SATURDAY, v3u«-?tsM 3. 

The court met pursuant to the adjournment of yesterday — pre- 
sent, all the members of the court, and the Judge Advocate, The 
proceedings of yesterday were read. The residue of the defence 
was received at near twelve o'clock, and the court proceeded to 
read the same. 

After completing the reading of the document — the following 
motion was madeand adopted : the judge advocate having stated 
that h» had received from the accused certain papers, purporting; 
to be the residue of his defence, the same were read and consi 
dered. The court is decidedly of opinion that these papers vary 
in many respects from the defence which was delivered on be- 
half of the accused by his counsel : that, in particular, the se- 
verity of animadversion upon the conduct of the judge advocate, 
which appears in these papers, did not appear in the defence tliat, 
^as delivered, and the court deems it due to itself to state, thai 
the conduct of the judge advocate during the trial was, in its 
opinion, free from the censure imputed to it. 

As, however, the court is not m possession of the defence, 
which, in violation of its rule and of precedent, was delivered 
Drally, and from notes under the appearance of reading it, the 
court has annexed this document to its proceedings, witii this 
further observation, that nothing is perceived in it which can in 
the least vary the conclusion to wiiich the court had arrived. 

JAMES BAKHON, Fresident 
Richard S. Coxe, Judge Advocate. 

The court adjourned till ten o'clock on Monday morning. 
Approved, JOHN QUINCY ADAM° 

17th of August 1825. 



a3'« 



REVIEW 

Of the foregoing resolutions and decisionfi o/ the court. 

It lias been thought but just and reasonable to admit this re^ 
vieif oi' the court's decision ; not with any design to argue over 
again any question of law or fact, involved in the preceding dis- 
cussions ; but to examine only such neio grounds of blame or 
censure as have, for (he first time, been disclosed in the delivery 
of the opinion. AVhen it is recollected how impossible it was, 
upon many points of the oiiginal accusation, to anticipate the 
particular points on which blame was attachf'^l f hou slowly and 
by piece-meal the points of attack were unfolded in the latter 
staji,es of the trial; and how effectually they had, till then, been 
kept out of view : but above all, when it was perceive*! that, af- 
ter the court had closed its doors and retired into conclave, to de- 
liberate on the final sentence, that new articles and particulars 
(in the genuine nature of new specifications, of vvliich not the 
slightest glimpse had been vouchsafed to the accused, during the 
trialjhad been elaborated from the vast and undigested muss of 
papers which had been thrown promiscuously on the table of the 
court ; without having been distributed and appropriated even to 
the vague specifications themselves ; far less to any minuter sub- 
divisions of the charges ; or so partially as only served to mask 
more effectually the unspecified and undivulged uses and appli- 
cations, that were intended to be made of them: under such cir- 
cumstances, the justice of giving to the public both sides of the 
question, upon these fresh topics of accusation, was manifest and 
indispensable. If tiiis were reasonable in regard to the new 
discovered points of atlack and crimination, connecteil with the 
original charges, and the mass of matter accumulated under 
then», — how infinitely more so when it is discovered liiat the 
party Iwd been accused in conclave, tried in ccwicluve, and so 
condemned, \^\iho\it a hearing, or being in any manner put upon 
his <lefence ; — and .all this for matters not pretended lo be brought 
under any of the stated charges, or the evidence produced t(» 
support them; but entirely of recent and subsequent origin? — 
"Why, in such case, a defence before the public is not merely, *m 
in the other, the only possible means of justification or apology 
left open to him; — but the public is precisely the tribunal to which 
alone his accusers have cited him. Wn repeat, that it is to the 
public alone that his accusers have addressed their censures : be- 
cause these censures, or the circumstances that produced them 
could have had no inlluence upon the. judicial Sentence ; — entered 
not at all into theelcn»ents o^Wx^ judicial coiulemnationand [uuiish- 
ment. To say that such circumslances had the least ima;^i. Table 
Meight in determining thegieat question of guilty or not «,'-ii!ty 
of the charges ; would bean apology worse than any reoi'^bation 
of the judical sentence, short of malice or corruption, if a par- 
ty commit any irregularity or impropriety, in his quality and re- 
lations as a party standing before a court of judiciituie, he siniuld 
be summarily attached and punished for it ; under iLc iiihei ent 



54* 

power of the court to assert and vindicate its own dignity, and 
authority against abuses of tlie privileges i ncident to parties. But, 
in that case, tlie party is called up to answer for his C(ttiteinpt; 
all the circumstances of justificaiion or mitigation aie wei,i!,lu'd ; 
and punishment awarded, according to the degree and circum- 
stances of the offence. Upon such an arraignment he is en- 
titled, not only to the same but to greater privileges in his de- 
fence, than in any other form of accusation : because he is ad- 
mitted to purge the contempt, by his own oath. Here, as alrea- 
dy stated, the accusation was in conclave : tlie whole proceeding, 
was ex parte, arni in conclave; and was foHowetl, not bv any 
judicial determinut;«n or punishment whatever; but by euiw 
jiluint and disapprobation rcpeatca f..„in day t') day, in conclave : 
without any efficient measure either to puiiiih iUa iJarty, or to co- 
erce him to a due respect for the violated rules and ordei s of 
the court. 

As a further and conclusive proof of th'i?, extra-judicial up - 
peal to the public, — the proceedings containing these e.v parti' nwd 
extra-judicial censures are separated from the mass of the pro- 
ceedings in the case ; from all the evidence, facts and circum- 
stances of the case ; and are published by autlwrity in the nea's- 
papers : and all this, monliis in anticipation of the time, when 
there was any probability (hat the voluminous mass of proceed- 
ings, with which these partial and garbled extracts were associa- 
ted, could possibly meet the public eye. ' Tis no apology to say 
that they were published along with the final sentence; which it 
is usual to publish, in anticipation of the body of the proceed- 
ings: because they had no necessary or proper connection with 
the final sentence ,• any moie than anv other of the inierlucutory 
opinionsor decisions upon collateral points delivered by the court 
in the progress of the <iial : imlpcil. as already reujarked, it 
could bave had no pi>ssible connection V. it!i ilie final sentence 
but what was oppiobiious to both. If the sentiment of di^siip- 
probation on the score of this alleged irrcgulaiity, prejudiced, or 
in any manner iniluenced the mind of the court, in determinin"- 
the general issue, guilty or not guiltj of the stated charges, w 
the quantum of puuishtnent to be awarded in consequence of con- 
viction, both the discretion atui the motives of tiie Judicial sen- 
tence are most opprobriously impeached : for whatever the niis- 
hehaviour of the party, before the court, that sentence sln.uld 
have proceeded purely upon the merits of law and evidence 
oxclusive!y,applicable to tlie Jiarges, upon which t!ie court was to 
pass: wholly uninlluenced Dy any adventilioiis circumstances. 
"If, on the other hand, it were appi^ehended that the real merits 
were inadequate to suslain and justify the judicial se.ntence in 
■public opinion; and that it was necessary or expedient t(» eke 
out the radical deft'cts of law and justice, in the main points (tf 
the accusation, by these incidental topics : an.d to induce the pub- 
iic to think that Com. Porter was guilty of disobedience of or- 
ders, in the Koxardo aHuir, and of iriiubonlinate conduct in the 
other instances alk'i^ed, tl.atit was necessarj to piejudicc and in- 
flame the public mind against him, by showir-g that he had com- 



55* 

mUtcil irregularities in the conduct of l>is defence; then the op- 
probiuni rests equally upon both judgments or opinions ; and re- 
flects, reciprocally, from one upon the other: — upon the judicial 
opinion, because it is thus confessed to have been so naked of mer- 
its, as t() re(|iiire such adventitious aid : — upon the extrajudicial 
opinion, because it was made up and published, not from a convic- 
tion of iJs intrinsic justice, but of its expediency as a help to the 
other. In no possible way, then, can any necessary connection, be- 
tween the two, be alleged as an apology for the publication, — 
without leaving it still as a mere appeal to the public ; but with su- 
peradded upprohriutii from the alleged connection and motive. 
Viewed, in any light, it stands confessed, an ex jmrte and exira- 
jndicial censure, volunteered at the bar of public opinion ; and to 
be considered us such ainiply, without any collateral motive or ob- 
ject, is the most facural/le light in whidi it can be viewed. At 
that bar then, let it be tried ; since there, and there alone, can any 
ellVct be given to the great maxim, audi alteram partem. 

The same reasons apply, in all their force, to the )iew discover- 
ed specifications of the geteral charge; or new discovered tfems 
of the general specijication (^however they may be published^ 
which have been elaborated in secret concUive, and promulgated, 
for the first time, with the final and irrevoca!)!e sentence, by 
which the party has been condemned and punished for them. 
Ill regard to them, the above cited maxim has been equally a 
dc.ul letter; — and can receiye life and enerjiy no where but at 
tlio bar of public opini(»n. To these two subjects, with a few pas- 
sing remarks upi>n the avowed principles which appear to have 
g'lidcd the court to the main conclusion of guilt, — shall this re- 
view be confined. 

'. The resolution of the court, on TuescLiy, August 9, passing a 
censure, because the dfft*nce iiad not been rednced t4> wrrtiiig, 
and transmitted to the court, on tlie day before, according to the 
appointment made on Saturday, when the oral delivery of it was 
concluded, is introduced with a recital of the great indulgence 
shovv^i bv the court to the accused. The urbanity and indul- 
gence of the court, and their delicate and liberal treatment to- 
wards the accused and liis counsel, in all the minor accommodar 
tions and facilities, and in all proper observances of personal re- 
spect and ])oliteiiess,are gratefully acknowlwdj^ed : notwithstand- 
ing the remarkable fact that upon all the points, (and they wetQ 
not a few,) of controversy, between the prosecutor and the ac- 
cused, on incidental questions, the former was invariably sus- 
tained and the latter overruled, with one single exception ; where- 
in certain documents ottered by the former were rejected : but 
the decision amply atoned fur and compensated by a giatuitous 
censure upon the iireievancy of other documents, not then iu 
question, but \\%ich !iad befuie been introduced; — under an evi- 
(ifot necessity to repel pieceding evidence on the other side, 
which was most clearly irrelevant and inadmissible, -»-but wliich 
had passed without censure. fflj 'I'his is said, not by way of re- 
tracting or qualifying the merit just conceded to the coui t ; — 

faj Vid. Proceedings rehtivc to Mr. Monj'Oc's deposiUon. 



66* 

but, in all candor and sincerity, to preserve the just and neces- 
sary distinction, which was thought to be quite obvious in the 
progress of the trial, between t!ie unfriendly bias of the judicial 
mind, — an<l the iiidult!;ent disposition resulting from the liberal 
spirit and habits of officers and gentlemen. No possitile com- 
plaint against tlie equitable disposition of the court could be 
made, so long as one appalling question, wliich hail subtilly and 
imperceptibly irisinuated itself into the marrow of the subject, 
and commixed itself with all the elements of perception and 
judgnient. could be kept out of view : so long as the dreaded, 
but imaginary and unfounded alternative could be parried of a 
condemnation, to be made as llgUt as possible in the penal con- 
sequence to the accused, or an acquittal poitendin» consequences 
infinitely more penal, if not fatal to the accuser. But that ideal 
spectre continually reared its gorgon crest, to petrify the heart 
of justice, blast the eye of intellectual vision, and wither the 
nerve of indepeiwlence. If, upon several of the incidental points, 
occurring in the course of the trial, the accused has not been 
overruled, plainly and obviously against all law, reason and com- 
mon sense : and if, in the opinion of intelligent and impartial 
men who shall have carefully examined the subject, the final pro- 
cpodings and sentence, both in their results and professed princi- 
ples, do not manifest aberrations perfectly astounding: why thea 
it must be fairly acknowledged that great injustice has been done 
.to the proceedings and opinions of the court. As to the great 
indulgence to the wishes and feelings of the accused, spoken of 
in the resoliitiDos of the court, it must be coni'essed that the cir- 
cumstances of his case were peculiar; — and called for exti'3"r- 
dinary indulgence. Not to recur again to the crambe recocta of 
vague and indefinite ch.i;-n;p<;. which nevertheless descended, in 
thfir dutftils, into an infinity of mmutt; and complicated mat- 
ters; — and the want of which precluded the usual preparations 
for the defence before the trial ; — it is only necessary to recollect 
how strangely the true ground of attack was masked by the pro- 
secution, till the latest practicable stages of the trifll ; and in- 
formation on these points, when distinctly asked for, broadly de- 
nied : — masked it is said, to the latest practicable stages of the 
trial, — it shouhl have been said till after the trial, properly so 
called, w;>s over; — till the couit had retired into conclave to de- 
liberate ; when no party but the representative o{ the prosecution 
was present. 'I'he more prominent exemplifications of these 
remaiks are; — Ut. the delay of any motion to take Mr. Mon- 
roe's ile[)ositi(>n (involving a laborious and minute research into 
voluminous documents to answer the new charges suggested by 
it) till the 2U(h July, just a fortnight after the court had been in 
session ; the refusal then to disclose the objects or the points of 
the jiccusation to which that evidence was to be applied; and 
the holiiirig up that deposition, several days after it was received, 
to wit, (ill the 29th July, without communicating its contents, 
or even the fact of its being received, to the accused : [a) 2d, the 
holding up the numerous and complicated list of differences bp^ 

(a) Ante, p. 46-9— 6f 



57* 

iween commodore Porter's published statement of the proceed- 
ings^and the original record, relied upon to support the 3d spe- 
cification, till Saturday the 23d and Monday the 24th of July.^fl) 
3d/ the withholding altogether all specifications of the in- 
stances of disrespectful statements and insinuations, and such as 
were not warranted by fact, which were intended to be adduced 
under the 4th specification, till the same were unfolded in con- 
clave: 4th, the instances, relied upon to support the 5th speci- 
fication, have never to this day been specified. The evidence, of 
all kinds, was closed on Tuesday, the 2d of Auffuat ; and the 
court indulged the accused till the Fnrl=>r Ajilowing; (the 5th,J 
to prepare his defences, on w>.;v,ii day and the next ('the delive- 
ry of the defence ami the reading of documents connected with 
it having c»»nsumed two days^ it was delivered orally before the 
court: and further time was allowed till the Monday following, 
^8th of August^ to reduce it to writing, and present it, in that 
form, to the court: the failure to have it ready, at the time last 
appointed, gave occasion to the resolutions of censure on Tues- 
day the 9th. 

Such are the literal facts, apparent on the face of the record : 
from which the extent and the merits of the indulgence granted 
by the court, and of the abuse of it, may be determined without 
a single comment or explanation. 

We now proceed to examine the particular grounds and terms 
of the censures occasioned by this delay of the defence. These 
appear to be conveyed in several resolutions ; the first on Tues- 
day the 9th, in consequence of the failure to produce the written 
defence according to appointment, on the day before : the second, 
on Saturday the 13th, when (it is presumed) the court met to re- 
consider their opinion, in connootion -rrith the written defence. 
These censures (in so far as the involved and perplexed phrase- 
oloiiy of some passages in them can be understood^ seem to re- 
solve themselves into three, independently of the gen,eral one 
for the delay : 1st, that an oral defence before a court-martial is 
a violation of all rule and precedent: 2d, that when reduced to 
writing, it varied, in many respects, from the oral defence ; par- 
ticularly in the severity of animadversion upon the conduct of 
the judge advocate : 3d, that it was delivered orally from not^s 
under the appearance of reading it. 

1. As to the first of these censures, it is positively denied 
that an oral defence is any such violation of rule and precedent : 
it is asserted, on the contrary, to be at the election of the accused 
to present his defence either written or oral ; and this is asserted 
upon the clearest authorities both English and American. The 
rule is laid down by Mr. Tytler and general Macomb in nearly 
the same terms, as follows : 

" When the evidence in support of the charges is oiosed, the 
prisoner may submit to the court, either verbally or in writing,, 
a general statement of those defences which he means to sup-; 
port by evidence." 

•• When the whole evidence on both sides, is closed, the pri« 
■oner may, if he think proper, demand leave of the court to turn 

(a) Ante, p. 50-1. 
8* 



58.^' 



up, either verbaUi/, or in a written slatcineiit, tlie general mat- 
ter of his defence; and to bring into one riew the import of the 
proof of the charges : with such observations as he conceives are 
fitted to weaken its force : and the result of the evidence in de- 
fence, aided by any arguments that are capable of giving it 
weight, (a) 

But if it were otherwise,-— the proper time to have corrected 
the irregularity, was when it was committed : having submitted 
to it then, however reluctantly fthe reluctance being entirely con- 
fined tn the breasts of them wl:o felt it, without the slightest in- 
timation of it to iiic o«-„nding p«rty,j it was strange it should 
afterwards be found fault wifli , cr..t certainly it is no satisfacto- 
ry answer, to say that it was mixed up Wnw <»ther and distinct 
topics of censure, merely to enhance the gravamen. ■ , 

2. As to the variances, in many respects, ('here is the crambe 
reoocta of variances again dished upj between the oral and the 
written defence, — what do they signify r — Was it in the nature 
of things to expect that an elaborate, minute and <lilfuse exami- 
nation of important and complicated questions of la\y and evi- 
dence, should be exactly the same in the written as in the oral 
f^rm r — The necessity and propriety of giving somewhat of a dif- 
ferent dress to the two; — of pruning, where the oral argument 
was too diffuse for the written form; and of adding illustratioji^ 
where the significancy of oral delivery failed in written compo- 
sition ; — all this must be obvious to the reflection and experience 
of every candid man. Besides, suppose the defence had been 
originally in writing, would any court have complained of or re- 
jected any supplemental remarks, which the party might after- 
wards suggest ? — And what possible objection to the addition ot 
such, when the parfy con»o« tn nrescnt, in writing, the substance 
and efTecv «>f -»vhot had before been deliveicd orally? — But as to 
the alleged instance of variance, in the severitff of animailversion 
upon the conduct of the judge advocate, — it is asserted that the 
same statements that now appear in the defence, relative to the 
irregular modes of conducting the prosecution, &c. were sulistan- 
tially stated originally; — and what is more, the statements are 
not denied and are undeniable in point oi fact. If they import 
any severity of animadversion, it is the fault of the fact not of 
the narration. However there is no intention here to discuss 
the merits of tlie judge advocate, as a public prosecutor, in re- 
spect to any one of the requisites, moral or intellectual, for such 
an office. VVhosoever proiuptci! or conducted the details of the 
prosec'ition, the mo<le has been complained of as unpreceden- 
ted ; — and as very far exceeding, ui ligor and obduracy, that 
equitable forbearance froni the utter lengths of partizan-zeal. 
commonly observed in public prosecutions ; and which distin- 
guishes between proper energy in fairly presenting the case of 
the prosecution, in its legitim:i!e force ; and the apices juris, 
which are laid hold of when tlie ainsof public justice are exas- 
perated by adventitious provocutM-ns. — The facts and the com- 
ments are before the world ; the judge advocate stands acquitted 
of all censure by the court: he is understood to have pub- 

faj Vld. Wacomb, ch. 4 a. 3. p. 96-7. T> tier to the same effect. 



59* 

lished his own vindication to the world : and there may the ques- 
tion rest. In repelling certain statements and reflections, which 
were viewed as digressions from the main course of the argument 
in hand, and as tending to the personal disparagement of the ac- 
cused, we are assured that notliing less was intended than any 
retaliation in the way of personality. If there be the slightest 
departure from polemical comity, the same impartial world must 
decide, after reviewing the course of the several discussions 
from the first to the las* of the trial, on which side it com- 
menced ; or what necessity there was for interposing the shield of 
the court in the conflict. Asto thequestionsof lawand fact, discuss- 
ed under the second charge and its seve'"i|''i'fciiications, an attertlpt 
was made to execute the v< 'j (aoorious task ('which, in reference to 
the frivoI()usiH>^3 of the matters made necessary by the accusa- 
tion to be investigated, might well be described as nperose ni- 
hil az'etis) of reducing to a written and detailed explanation all 
the minute points of evidence, which nothing but a very careful 
and tedious eoinpaialive analysis could make intelligible. This 
task fihe nature and extent of whicli may bejudged by the diges- 
ted stalement and analysis of the evidence intended to accom 
pany this reportj was undurtaken ui>dersome circumstances pe- 
culiarly adverse to its speedy aiul eft'ectual execution: and, af- 
ter some lime spent upon it, the counsel finding himself mista- 
ken in his compuiatiim (dthe time it would take, and the necessi- 
ty for sendirig in the defence pressing, drew up or dictated a 
concise siimiuary of the principal points both of law and fact; — 
trusting to the court's recollection of the details. — In this 
respect, doubdess, the written defence varied very considerably 
from the oral i>ue. So far, however, it was all to the disadvan- 
tage of the accused ; — and tlie same may be said of the imputed 
neglect to send it in due tinx^ ? *^tc court, if convinced that such 
delay was unreasonable, had only to pass on lo jutltiment, with- 
out it ; atiH fio more needed to have been said. 'I'he disadvan- 
tage would have been •)n tlie side of the accused ii\(ine : he would 
have forfeited the advantage of his defence, before the President, 
when the sentence should be presented for his approval. That, 
in all reason, should have been deemed penalty enough, without 
launcliing against him the hvutuin fulmen of e.vtra judicial cen- 
sures. — They did in f;ict, the next day, resolve so to pass on to 
judgment, without the defence: and yet, four days afterwards, re- 
peated and e.vti'tided their censure, as noticed under the next head. 
3. As to ilif la<t presumed topic of censure, which would in- 
dicate that the court were deceived, by having an oral defence 
palmed ujxui them for a written one ;— it is thought extremely 
])robabie that we have been mistaken in drawing this inference 
from the perplexed tei ins of the resolution. — 'Tis heUl to be im- 
possible tiiat the court itself could have been conscious of any 
such inference being involved in the terms of the resolution they 
were pas-jing: 'tis rather concluded, if these terms, in the origi- 
nal draughting «f them were imleed framed with any view to 
such inference, (^wliich is scarce credible under the circumstan- 
« esj that their covert aim was not at all adverted to by tlie court, 
'lliis conclusion, must, for the present^ b« held clear f<^r the foK 



60* 

lowing reaions. Ist. It was a matter perfectly notorious, at the 
time, that the defence was delivered oraliy ; — and is here posi- 
tively asserted, upon the most direct and undeniable authority, 
that it was so distinctly known to the court and to the judge ad- 
vocate. 2dly. So much appears on the face of the court's pro- 
ceedings ; — wherein it appears that time was given, after the oral 
delivery of the defence, to reduce it to writing and present it in 
that form to the court: and the court, in the first resoluflon fon 
the 9th) wherein they pass any censur« on this subject, — men- 
tion it as one of the instances of irregularity to which they had 
reluctantly submitted : and if they submitted to it reluctantly it 
couklnot have been iguoi.«.«(iv. It is only in the second resolu- 
tion, passed some days afterwarus, tu«t the expressions, giving 
color to this obnoxious inference are found. To disavow such in- 
ference is far more necessary for the honor of all concerned, than 
to have repelled any of the animadversions alluded to in the res- 
olution. — For ourselves, we have no hesitation to avow a clear 
belief that these expressions were not understood in any such 
sense. 

In reviewing the decision of the court upon the merits of the 
charges and specifications, no remarks, in tlie iiaiure of are-argu- 
ment of the original grounds of accusation or defence, shall be 
admitted ;— but, as already intimated, the whole will be limited 
to the new grounds disclosed, for the first time, in the definitive 
sentence. 

Charge 1. The only remarkable circumstance that distin- 
guishes the finding under the 1st charge, is a judicial discrimi- 
nation between the criminal act and the criminal intent. Not 
only is the act, for which he is condemned, discharged by the 
terms of the conviction from any bad design or ii»tent whatever ; 
but the negative innoconco of intent, from the absence of bad 
motives. Is enhaaced hy the positive merits of the intent, fiom 
the presence of the most laudable motives: for iW« r.iiininal act 
is expressly and exclusively ascribed " to an anxious disposi- 
tion on his part to maintain tiie honor, and advance the interests 
of the nation and the service." Now the universal maxim of 
jurisprudencie is that the intent is just as essentia! an ingredient 
of crime as the aci itself ; and that they are inseparable: the 
bad or unlawful intent being either expressly proved, or necessarily 
implied from the bad or unlawful act. Therufore a judicial ac- 
quittal of the intent, accompanied by a judicial condemnation 
for the fact, is universally held to be a solecism in terms. If this 
maxim prevail in ordinary cases, how infinitely more imj)erious 
its sway, when applied to a military accusation for the disobedi- 
ence of a discretionary order: wherein, as explained in the de- 
fence,(a) the essence of the charge is necessarily a corrupt or 
malicious or other ill design to abuse and pervert to bad purpo- 
ses the discretion vested by the terms of the order. In ettect, 
Commodore Porter now stands convicted, under this charge, of 
nothing more or less than the execution of his orders in a man- 
ner dictated by " an anxious disposition on his part to maintain 
the honor and advance the interests of the nation and the service.'' 

f a ; Ante, p. 26.* 



61* 

Charge 2. — Specification I. The court, in deciding upon the 
character of the five letters, referred to in this specification, 
have acquitted one of tliem, and brought the other four witliio 
the censure of the law, as " insubordinate and disrespectful." 
All we have to say upon this matter is to request the reader to 
turn to the very first of these, designated by the court as of the 
condemned character: viz: the letter to the President of April 
17, 1825: and having carefully read it, let him calmly consider 
within himself, what is the sort ot style, and what the strain of 
complaisance, with which the officers of the navy must hereafter, 
upon the authority of this decision, address either request or 
complaint to the Executive. If, in its pro"-"! shape, it be crim- 
innl, what must it have iieen to be agreeable? 

Specification s. Ll^iider this specification he is convicted of 
all and niugular the inaccuracies, ('without exception^ pointed 
out by the judge advocate in a certain paper described as being 
marked No. 15 i — which, it is presumed, is the list of variances 
between the printed proceedings of the cofurt of inquiry, and the 
original record : which, upon reference to the same in the state 
of the casein the foregoing report, will be found to consist of the 
minute and immaterial variances so often mentioned and explain- 
ed : in one instance a typographical error of no moment: 
in other and numerous instances, minute clerical mistakes, in the 
course of transcribing; — or as argued in the defence, variances 
arising fron^ alterations of the original made after the copy 
had been given out: and in other instances, omissions of docu- 
ments, acknowledged and explained on the face of the publica- 
tion, as not in his possession; and which it had not been in his 
power to obtain, &c. These variances ('from whatever cause pro- 
ceedingj descend t» the minutiae of putting a noun in the sin- 
gular instead of the plural; m- viri> t.*»-p<»/ — of misspelling one 
or more words ; — of making a sentence end at one place instead 
of another ; a v.-jriance reducible to the difterence between a 
comma and a full stop, &c. &c. Here, as was very natural, the 
court has followed the precedent of their decision under the 1st 
charge; by making a judicial discrimination between the intent 
and the act: having fully acquitted him of all design and im- 
proper motive, but nevertheless convicted him of each and every 
of the inaccuracies. — Then the decision ;iiuount6 to this, that the 
most innocent and trivial mistakes of a copyer or printer, employed 
by an officer of the navy, constitute an offence cognizable by a court 
martial, in sucli offi(;er : though he, and his clerks and printers 
be clearly acquitted of any " design or improper motive" in the 
C«)mmission of such inaccuracies. Now supposing every one ot 
these inaccuracies to be chargeable to the mistake of the copyers 
and printers ; — and that there is nothing in what is said about 
accounting for them by the alleged alterations of the originals,— 
it is asked what officer, according to this rule of estimating mil- 
itary erimes, can possibly es^cape conviction and punishment, if 
his superiors have any desire or interest to convict him, sufB- 
Qiently strong to prom jH such minute industry in the iiivestiga- 
tion of trivial inadvertencies and mistakes, equally innocent of 
intent as of consequence? — The imwcence of the art in poiirt of 



62* 

intention, is no longer matter of dispute ; — it is judicially ascer- 
tained anil }U(>uiuIa;ateil : no other badge of criminality, no prac- 
tical uiiscliic! orbad consequence of any kind, is even pretended 
either in the specification itself, or in the judicial conviction un- 
der it. 

Well tnijf'it Cinn. Porter insist in his defence upon tlu; necessi^ 
ty of adiifimij to the exceptions taken by his coun.sel to the suf- 
ficiv ncy of these specifications, lest he might "lay himself open 
to conviction upon mere pr(»of of the naked fact of havitiu; done 
such or s'jch things, without any consideration whatever of the 
legal ^Jf-^rt ni moral character ol the acts charged:" well might 
he ••bi'.vareot being c^.tt-apo^tl^ by vague and ambiguous plua- 
ses, into such a dilemma, as that Mic c..„,-t should feel itself com- 
pelled to find the fac^ against him, without the- «ptessity of im- 
puting to it any specific degree of legal or moral iuipropru-iy.'Y/f j 
The lipprehension of such consequences from the course of the 
prosecution, has been more than verified by tiie event: not only 
has it been thought competent for the court to convict him of the 
fact " vvitimut the necessity of imputing to it any moral or legat^ 
imprupi iety." — but here he stantis convicted of the/acf, with a 
distinct and positive acquittal of all /lifeniion of evil : — nay more, — 
having distinctly ascribed to him intentions positively good and 
pi-aiseworthy : — Then for acts perfectly harmless in efi'ect, — and 
thus griiced with innocent and even laudable motives, is it jiidi 
cialltf avowed that he has been convicted and punished. 

Specification 4. Now we come to the new-discovered s^^eci- 
fications of the general charge, or particulars of the g"enera/ spe- 
cifications ('liowsoever it may please the discoverers of these phe- 
nomina to phrase themj which were first discovered in conclave; 
and for the first time promulgated and made known to the party- 
charged, in the oflicitil publication of the final sentence by which 
he has been condemned for them. Wheltier it were possible fi'i 
human foresight or human reason to have anticipated such ; — oi 
if it were, whether such anticipation should not have been deem- 
ed a libel upon the prosecution, and a gross insult upon the 
court, — is confidently submitted to the impartial reader, upon 
the bare statement of the case. 

This specification bears a double aspect; — charging the " va 
rious remarks, stateui^rLts and insinuations," in the pamplile). 
as faulty in two lespects ; — viz : as " not ivir ranted by the/ac^s-, 
highly disrespectful to the Secretary of the Navy and to the court 
of inquiry. 'Y.'/j It has been ren^arked and positively asserted in 
the course of the defenre, and nothing appears in the [Xdceedings 
to raise the least doubt of the correctness of the assertion, that 
not the slightest intimation wa,s given in the whole course of the 
prosecution, of what parts of tlic pamphlet were liable to this 
charge of untrue or disrespectful remarks, 5cc. The paiii|,hlf( 
had been given in evidence under the two preceding specifica- 
tions ; — and under the third the particular instances ot incorrect- 
ness complained of, were at leng'b, and after great delay as al 

(^aj Ante, p. 35 &. 36. 
ChJ Ante, p. 8. 



63* 

learlv remarked, pointed out with sufficient minuteness. \. Jt as 
to tlii.H specificatioit, it remained wholly unnoticed, in regard to 
any appropriation of evidence, from the mass on tlie table of the 
court, to support it. This task, it seems, was reserved for the 
private ear t)f ihe court, after they had retired into conclave, to 
deliberate on the final result. 

It might liave been inferred and anticipated from the 
course of the prosecution in parallel instances, though certainly 
from no analogy to the sound principles of law ot reason, that 
every remark in the pamphlet, tending to controvert or question, 
no matter how dispassionately and decorously- aht opinion or 
proceeding either of the court of u-"^i»'" y or of the Secretary of 
the Navy, would be l:)i'J ''"Kf of as within the censure of tliis 
specification. Accordingly, no surprise was felt at the first five 
passages e>:tracted from ttie pamphlet, and quoted in the opinion 
of the court. But the two last instances cited by the court; — 
the one as a " statement not warranted by the facts," and the 
other, it is presumed, as containing the disrespectful remarks or 
insinuations, did, indeed transcend all that could have been i.n- 
agined of extravagant and desperate expedients to make out the 
semblance of a criminal charge : after all preceding experience, 
they were .vtounding. 

* I. The first of these instances bears that "in the remarks in 
p. 31 [of the pamphlet] it appears to the court to be implied that 
aliihe documents, upon vvhich^the court of inquiiy founded its 
opinion, were contained in the pamphlet — wlilcli was not the/acf.'* 

Now the first question is, which of the documents of all those 
upon which the ctmrt of inquiry founded its opinion, can the 
court possiWy have intended as those not contained in tlie pam 
phlet ? Though not designated hy the court, tliey may be iden- 
tified with equal certainty ? «n^ 'T,r this purpose, referpnco muet 
be had to the detailed list of inaccuracies delivered in by the 
judge advocate ; and which the court has referred to as No. 15; 
no other documents can have been intended, because the court 
has expressly said that, with the exceptioa of the errors tlierein 
particularly noted, the proceedings of the court of inquiry, as 
published in the pampldet, are a correct transcript from the re- 
cord. According to the analysis of ihat list, stated in the de- 
fence, faj ('which is confirmed by a cai '.ful and accurate revision of 
the analysis as compared with the paptM- itseltj the pau;p!dct is 
charged with the omission of onl}' tjt'o of these d(;cuments : 1. 
The original letter of instrurtione, Feb. 1, 1K23, from the Sec- 
retary of the Navy to Com, Porter: 2. a letter from the Secreta- 
ry of the Navy fMay 7, 1825) to the judge advocate of the court 
of inquiry ; cited as exhibit CJ. 

Here it may b'j useful to note the distinction betv/ecn the two 
usies which are made of the alleged omi.-si'm t)f these documents. 
Under the 3d specification, they are cha'c ' as insiantts of in- 
accuracy in the published copy of ihe pi i-'-edings ; — ufidei- the 
4th, thai inaccuracy is now aggravated n -jjui.h! falsel'.ood; in as- 
serting, by implication, that the docun. ... .- were, in lact, cxja- 
tained in the pamphlet. 

■^aj Aute,p. 40— 1* 



b4*' 

The only "remarks" of any kind to be found in page 31 ot 
the pamphlet, are contained in the notes upon the proceedings of . 
the court of inquiry on Saturday, May 7: in one of which notes 
^and the only one that could possibly have been ajluded to^ the 
decision of the court of inquiry rejecting certain documents 
which had been transmitted by the Secretary of the Navy, with 
his aforesaid letter G, is discussed. — The nature of the assertion, 
supposed to be implied in this note, cannot be better explained 
than by giving the entire passage, from p. 31 of the pamphlet: 
including as well the proceedings of the court of inquiry, for 
Saturday, as tK<» ^.ntes upon the same. 

[SATURDAr, t^» m^y. 

The Court met pursuant to the adjournnieni r>f yesterday : pre- 
sent all the members of the Court, and the Judge Advocate. 

The Judge Advocate informed the Court that he had received 
a communication from the Secretary of the Navy, to be submit- 
ted to the Court: which was read, annexed to the record, and 
marked (*J The accompanying documents were also re^d, the 
Court reserving all questions as to their competency and credit 
for future deliberation and decision. 

Alter reading tlie papers, the Court was cleared, and the Court 
proceeded to deliberate upon the papers submitted to it, and af- 
ter having maturely considered the same, the Court was opened, 
and tl)e Judge Advocate stated that the Court is of opitiionthat 
the deposition of Lieut. Barton, dated February 6th, 18?s, be 
annexed to the record, which is accordingly done, and the paper 
is marked (H.) 

In regard to the other documents, the Court is of opinion that 
many of them are not sufficiently authenticated to authorize 
their reception, without an j^xpress and sufficient waiver of all 
exceptions eiiieicKi on the record.* Thai some of them appear 
to be of a confidential character, and thejr coiuenta audi, as with- 
out affecting this case, ought not to be exposed to the public eye 
without necessity : and tiiat collectively, they present no facts 
or views calculated to elucidate the subject submitted to the 
Court. The Court, therefore, direct the Judge Advocate to re- 
turn them to the Navy Department as irrelevant. 

+ It was the cause of extreme surpi'ise tome, as it was to every bystander, 
and as I liave no doubt it is to the reader, that such a ct)ndition for the admis- 
sion of the documents on the record should liave come from the Court. If 
the documents were proper testimorw , they ought to have been admitted 
without any conditions, and if they were not testimony, they oug-lit to have 
been rejected. As to the character of the documents, wl>etlier confidential 
Oiv otherwise, tliat was an affair for me to consider,' and not for the Court. 
It tvas one which the Court had nothing to do with. Tlie reader hm-ing the 
documents before him, can judge of the ])ropriety of tlie other point of the ob- 
jection, to wit : " ttiat collectively they present no facts or views calculated to 
elucit'ate the subject subinitted to the court." 

* Not in my possession. 3 

The blank left for the mark of the communication from the 
Secretary of the Navy, referred to in the above minute of the 
proceedings, was afterwards filled up with the letter G. 



&$* 

Now tliis new specification, thus elaborated in secret concluWte, 
and fur tlie first time promulgated with the iinul result of the de- 
liberations in such conclave, bears upon its face three distinct 
rt'tutatioiis, so obvious and palpable, and so unanswerable, as 
iiiigiit well have raised our special wonder if they had escaped 
the njost casual and careless observer : but that they should have 
escaped an intelligent tribunal, assisted by a learned professor of 
the law, — who had all spent weeks in a laborious and minute in«- 
vestigation of the subject, is utterly irreconcileable with any pre- 
conceived itlea of judicial accuracy and attention to the matter 
in hand. 

• Of the three answers to this specification, evident and paipable 
on the lace of the very ilncuinents oh which it professes tD be 
founded, any one is iibsidiitely demonstrative and conclusive. 

1st. What part oi ihe above cited n()te implies that "all tlic 
docianentson vvlvich the court of inquiry founded its opinion, wefe 
contained in the pamphlel r" — The concluding remark in the 
note certainly moie than /ufw^it's that the reader has some docu- 
ments before him: what lliey are is to be decided by the con- 
te-;t only : — and who can read that context, and hesitate, for an 
instant, to [)erceive that the documents alluded to, can by no 
possibility, be any of those "upon which thq court of inquiry 
foiindci! lis opini,o!! ?"' — Surely it must be an insult to any ordi- 
nary utuK'rstandinji; to avgzLe from such context tjiat the only poi^- 
si'Me docnmeiits alluded to are tliose which, for the reasons above 
s' -ted in iheir proceedings, that court hail rejected ; — ayd "di- 
rected the judge advocate to return to the Navy Department, a'S 
irreU'vn:tt.'^ I'hey were so returned ; and formed no part even 
of the tlocuments attaclied to the record of proceeclings ; — far 
less of those "on which ihe court founded its o/Jtnio»." The«e 
rejected documents are nnvtM-tUulens inserted in the pamphlet ; — 
and (he remai ks in Uie note \vere evi<lently intendell ty s,how 
tiiat lilt V vv(.Te relevanf, and ou^ht to have been received as evi- 
dence, riicii it is perfectly manifest, upon (he face of the pa- 
per, that the remaiks in p. SI of the jjamphlet, do not imply 
'••that all the documents on which the court of inquiry founded 
its opinion were ctmtained in such pamphlet." 

2diy. But suppose it were so i,mp!ied ; — ue assert, without 
hesitation or (|ualiticatii.'n, that such implication would have been 
stri' tlv and d'-monslratively true : allowing for the inaccuracy of 
i!)e expression useil by (he court martial, when they speak of the 
simple rif/jr;ri (d' the/«c/s, made by the court of inquiry, as the 
opinion of tiiat court. 

'i'he precept, by which 'hat court was convened, required ot 
them no opinion m\ the subject : but simply a statement of the 
facts, and a report of the causes v.luch U-d to the descent upon 
i'orto Kico. Accordingly the court refrain from any expression 
or intimatioii of opinion wliaiever ; and limit themselves to a Re- 
port containing a mere siatemt-nt of the liicts; and a reference 
to the evidences documeniary and oral, by which such facts are 
I'siablislu'd. N-ow two. tilings are obvious and palpable on the 
la-e u!' ihv papers. First-. t:iat neit4ier iff iiu* docamenta a^lf^geU 
'a- 



66* 

in the judge advocate's detailed list of inaccuracies to have been 
Omitted in tlie pamphlet, is either inentioued or alluded to in the 
Report (ov opinion &s\ihci\\\in\) u{' the court of inquiry That 
court had no occasion whatever to rt-fi-r t(» tlie letter oJ' instriic- 
tions ; — lor they were not authorised, mitherdid they profess to 
decide whether sucli instructions hail been obeyed or disobeyed ; 
and they carefully avoid any allusion to that question. As to 
the letter, marked G, from tlie Secretary to the judge advocate, 
communicating the rejected docinneni j/ihere was still less reason 
for saying that the opinion was, or by possibility could have 
been toundeil upon that : there is not the remotest allusion to it 
in the report. SecomHr, tlw pamphlet does, in fact, contain eve- 
ry document upon which the report or D|.lnion of tlie court of in- 
quiry was founded j — or, in any manner, alluded to in that report. 
Thi? depends not upon assertion; nor even requires the trouble 
to refer to the documents which demonstrate it on their face: it 
is distinctly adniitted by the court martial, when they admit that 
the proceedings, as published in the panij)hlet, are a correct trans- 
cript from the record, except in the instances particularly noted 
in tlie detailed list of inaccuracies. For'that list notes the omis- 
sion of no document whatever, but the two just mentioned : and 
the report is not founded upon them or either of them ; — nor, in 
any manner, cites or alludes to them. Then a conclusion, direct- 
ly the converse of that stated by the court martial, is clear and 
demonstrative upon their own showing: namely, that it is the 
fact that all the documents upon which the court of inquiry foun- 
ded its report, were actually contained in the pamphlet. 

3dly. As to the first of the documents alleged, in the list of 
inaccuracies, to have been " ivholly omitted ;"-- -viz. the original 
letter of instructions; — two of the postulates assumed by the 
court martial might safely be g»ant»f! ; while the third and most 
material would be still as manifestly contradicted by the very 
papers before them. Suppose this to have been one of the docu- 
ments actually referre<l to in the note, and therein implied to 
have been contained in the pamphlet; and suppose further, that 
it was one of " tlie <locuments upon which the court of inquiry 
founded its opinion ;*■ — still it is not true that it v,as wholly omit- 
ted ; — it jf. a fact that it is contained in the pamphlet : in* so far 
as an extract containing every word of it, which bore any rela- 
tion whatever to ^he then pending subjiict-niatter of in(|uiry, is 
found at page 68 — 70 of the pamphlet; as is stated with abso- 
solute accuracy 'in the defence, (o) As to the other document, 
it is expressly mentioned, and its omjss/on accounted for as "not 
in my possession," in a note at the same page 3 I , — and just along 
side of the other note which is supposed to have implied that the 
document was contained in the pamphlet. So (hat the one note 
IS made to impbf the assertion of a fact, which the party, in the 
saine breath, ha.s most distinctly and unequivocally rfiioi-oif erf, 
and stated to the contrari/. 

'Tis, however, waste of time and labor tlius (o pursue .the 
manitoid and manifest inconsistencies and absurdities of this 
new divulged speciiicadon :, since the plain reading of the note 

faj Ante, page 40-1, 



■ 67^ 

so absoluloiy excludes (he idea of any thing being asserted or im- 
plied coiLcernina; any one of " ilie documents upon which the 
c(rurt ot inquny founded its opinion," or even of tho^e which 
toj-med .-iny part of its record. 

2. «' The court also includes, as proof of this specification, the 
second paragraph of the paper marked K, in p. 40, of the patn- 
phlet. ' * 

Here we could, with difficulty, credit our own sensfes, when 
we perceived (hat the court-martial had laid hold of a transac- 
tion before the court of inquiry itself; for which the party was 
clearly amenable to that court"; and fo«- wl.ich he had been ac- 
tually censured and punished by lha.t court: in short that he 
was to be twice tried and punis-hed for the same identical offence. 
The paper marked E, here spoken of, is no other than the iden- 
tical address from commodore Porter to the court of inquiry 
(forming a part of the record of their proceedings; which that 
court voted disrespectful to themselves and to the Secretary of 
the Navy ;— and, as such, censured and punished by interdict- 
ing direct intercourse, in future, between commodore Porter and 
the court; and subjecting all his subsequent communications to 
pass the inspection of the judge advocate, before they could 
come to the eye of the court: a resolution which in effect put 
an end to all further participation on his partln their proceed- 
ings j and, as he says in the advertisement to his pamphlet, drove 
him from the presence of the court, and prevented him from 
making (he explanations on which he founded his justification. 
lor the nature ol (liis paper, and the grounds on which it wa?^ 
so censured and punisheti as disrespectful by the court of inqni- 
'V, reference must be had to the proceedings of that court, and 
o the preliminary state of the casp, in the foregoinu,- report. • 
ihat matter lias nothiog to do with the question now in 
Imnd. — For the present purpose, 'tis only necessary to say that 
for any disrespectful paper presented to the court of inquiry, or 
for any other blameworthy word or deed, there uttered or trans- 
acted, that court had complete and summary jurisdiction, in the 
exercise of their incidental powers, to censure and punish the 
party guilty of the contempt: or, if any enormity, requiring a 
iieavier punishment than it was competent for that court to inflict, 
(lad been committed, — they might have elected to remit the pain- 
ty to a court-martial. But, in this case, they elected to take di- - 
lect cognizance of the supposed offence, and to censure and pun- 
ish it, in the degree which, to their judgment and discretion, 
seemed me(e; and not to remit the party to a court-martial :-^ 
they did, in fact, exert their summary jurisdiction over the 
case; — and did apply the remedy which, to their judgment and 
discretion, seemed fitting, adequate and effectual. After this, — 
what the court-martial could p(>ssibiy have had to do with the 
matter is inconceivable; even if it had been included among the 
matters clKirged against commodore Porter upon the present oc- 
casion. But it is not so charged. There is no possible con- 
struction of the specilications that ran include it, without an 
absolute reprobation of them as devices and snares contrived. 



i)8* 

of set purpose, to surprise and entangle the accused in liiddcn 
pitfalls, or invisible meshes : instead of giving him fair warning 
of the grounds of accusation, and the points to be defended. — 
We luive thiM-efore no hesitation to acquit the original framer of 
the charges and specifications from any such design : and to con- 
clude that it was an afterthought, suggested by tlie desperate ne- 
cessity of picking up every rag and ren»nant to cover the bald 
and naked matter of the real accusation. The .specilications, in 
terms, impeach the pamphlet of four distinct otVences : 1st, as 
publielung. without aiifhorifif from the executive, the proceed- 
ings of the court uf inrjuiiy": i3d, as publishing an incorrect state- 
ment of such proceedings: bO, ac having inserted in it various 
remarhs, statements, and insinuations mgKly disrespectful, ccc 
4th, as publishing certain oliicial documents without Icave.- 
Isow the third of these constitutes this fourth Sj)ecification, ni. 
der which has been brought the disrespectful address ('as it wa- 
thou;^htj to the court of ii)(|uiry ; whicli constitutes a substan- 
tive and necessary part of the record of that court's proceedings. 
Then who could have imagined that the disrespectful matter, 
charged in this specification, alluded to any thing but the remarks 
and comments, in that pamphlet, upon t'.icse identical proceed- 
ings ; or that this specification meant to charge him with having 
" inserted'^'' in his pamphlet an essential part of the same proceed- 
ings, which the next preceding specification rerjuired him to have 
inserted to the minutest tittle ? — Under the third specification 
he is to be punished if he fails, in a single word, letter, comma 
or emphasis, to set out the whole of the proceedings: by the 
fourth, he is to be punished because he did not diminish and f;d- 
sify the printed copy of proceedings by leaving out nearly two 
closely piintcd octavo pages of the same ; or at any rate one 
entire paragraph ; for such is the clear and indisputable cfiect 
of ranking the paper E, or the second paragi-apli of it, among 
the remarks and statements which he is charged with having " in- 
serted'''' in his pamphlet. To push the strictures upon this sen- 
tence further would be worse than superogation ; already have 
they gone loo far: for when a proposition, either negative or af- 
firmative, rests upon principles perfectly plain and obvious to our 
cosnmon sense, it requires far more skill to discuss it, vvithout 
blurring and obscuring its inherent brightness, than to elucidate 
by argument or evidence the abstruscsl arid most involved of 
questions. Tlie taper that illumines the midnight darkness, but 
confuses and discolors the etiulgence of the nnon-tide ray. 

Tl'.us do we prufi'ss to have supported our ch.allenge ('overbold 
and confident as it may have seemedj to justify the decision 
here discu!;scd upon any principle of law, leason or justice 
anil umil it can be so justified to impartial and ir.telligent opin 
ion?, founded on a careful examination of the evidence and the 
principles on which it rests, the party ailccted, either by its legal 
penalties or its extra-judicial censures, may look with calm in- 
ditference upon the n)oral consequences oi either: unless indeed 
his public spirit piompt him to giicve over thet», as they may af- 
fect an establishment of higli interest and importuace to the com 
mon v.cal. 



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